350,000,000 8.500% Senior Notes due 2019 Underwriting Agreement May 4, 2009
Exhibit
99.1
$350,000,000
8.500% Senior Notes due 2019
May 4,
2009
Citigroup
Global Markets Inc.
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇
▇.▇.
▇▇▇▇▇▇ Securities Inc.
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▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇
UBS
Securities LLC
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▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
as the
Representatives of the several Underwriters
Ladies
and Gentlemen:
CIGNA
Corporation, a Delaware corporation (the “Company”), confirms,
subject to the terms and conditions stated herein, its agreement to issue and
sell to the Underwriters named in Schedule I hereto (the “Underwriters”) the
aggregate principal amount of its notes listed in Schedule I (the “Notes”) to be issued
pursuant to the Indenture, dated as of August 16, 2006, between the Company and
U.S. Bank National Association, as trustee (the “Trustee”), as amended
by Supplemental Indenture No. 3 thereto, dated as of March 7, 2008 (as amended,
the “Base
Indenture”), and Supplemental Indenture No. 4 to the Base Indenture to be
entered into between the Company and the Trustee (the “Supplemental
Indenture,” and together with the Base Indenture and any amendments or
supplements thereto, the “Indenture”), between
the Company and the Trustee.
1. Representations and
Warranties of the Company. The Company represents
and warrants to, and agrees with, each of the Underwriters that:
(a) An
“automatic shelf registration statement” as defined under Rule 405 under the
Securities Act of 1933, as amended (the “Securities Act”) on
Form S-3 (File No. 333-136704) in respect of the Notes has been filed with the
Securities and Exchange Commission (the “Commission”) not
earlier than three years prior to the date hereof; such registration statement,
and any post-effective amendment thereto, became effective
on
filing; and no stop order suspending the effectiveness of such registration
statement or any part thereof has been issued and no proceeding for that purpose
has been initiated or threatened by the Commission, and no notice of objection
of the Commission to the use of such registration statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities
Act has been received by the Company; the base prospectus filed as part of such
registration statement, in the form in which it has most recently been filed
with the Commission on or prior to the date of this Agreement, is hereinafter
called the “Basic
Prospectus”; the preliminary prospectus (including the preliminary
prospectus supplement dated May 4, 2009) relating to the Notes filed with the
Commission pursuant to Rule 424(b) under the Securities Act is hereinafter
called the “Preliminary
Prospectus”; the various parts of such registration statement, including
all exhibits thereto but excluding Form T-1 and including any prospectus
supplement relating to the Notes that is filed with the Commission and deemed by
virtue of Rule 430B under the Securities Act to be part of such registration
statement, each as amended at the time such part of the registration statement
became effective, are hereinafter collectively called the “Registration
Statement”; the form of the final prospectus relating to the Notes filed
with the Commission pursuant to Rule 424(b) under the Securities Act in
accordance with Section 7(a) hereof is hereinafter called the “Prospectus”; any
reference herein to the Basic Prospectus, the Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein, as of the date of such prospectus; any reference to any
amendment or supplement to the Basic Prospectus, the Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include any post-effective
amendment to the Registration Statement, any prospectus supplement relating to
the Notes filed with the Commission pursuant to Rule 424(b) under the Securities
Act and any documents filed under the Securities Exchange Act of 1934, as
amended (the “Exchange
Act”), and incorporated therein, in each case after the date of the Basic
Prospectus, the Preliminary Prospectus, or the Prospectus, as the case may be;
any reference to any amendment to the Registration Statement shall be deemed to
refer to and include any annual report of the Company filed pursuant to Section
13(a) or 15(d) of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration Statement; and
any “issuer free writing prospectus” as defined in Rule 433 under the Securities
Act relating to the Notes is hereinafter called an “Issuer Free Writing
Prospectus”;
(b) No order
preventing or suspending the use of any Preliminary Prospectus or any Issuer
Free Writing Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material respects to
the requirements of the Securities Act and the Trust Indenture Act of 1939, as
amended (the “Trust
Indenture Act”) and the rules and regulations of the Commission
thereunder, and did 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, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in
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reliance
upon and in conformity with information furnished in writing to the Company by
an Underwriter through the Representatives or Debevoise & ▇▇▇▇▇▇▇▇ LLP on
their behalf expressly for use therein;
(c) For the
purposes of this Agreement, the “Applicable Time” is
4:02 p.m. (Eastern time) on the date of this Agreement; the Preliminary
Prospectus as supplemented by the final term sheet prepared and filed pursuant
to Section 3(b) hereof and any Permitted Free Writing Prospectus (as defined in
Section 3(a) below), taken together (collectively, the “Pricing Disclosure
Package”) as of the Applicable Time, did not include any 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, not misleading; and each Issuer Free Writing Prospectus does not conflict
with the information contained in the Registration Statement, the Preliminary
Prospectus or the Prospectus and each such Issuer Free Writing Prospectus, as
supplemented by and taken together with the Pricing Disclosure Package as of the
Applicable Time, did not include any 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, not misleading;
provided, however, that this representation and warranty shall not apply to
statements or omissions made in an Issuer Free Writing Prospectus in reliance
upon and in conformity with information furnished in writing to the Company by
an Underwriter through the Representatives or Debevoise & ▇▇▇▇▇▇▇▇ LLP on
their behalf expressly for use therein;
(d) The
documents incorporated by reference in the Pricing Disclosure Package and 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
Securities 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; any
further documents so filed and incorporated by reference in the Pricing
Disclosure Package and 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 Securities 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; and
no such documents were filed with the Commission since the Commission’s close of
business on the business day immediately prior to the date of this Agreement and
prior to the execution of this Agreement;
(e) The
Registration Statement conformed, as of its effective date, and conforms, and
the Pricing Disclosure Package and the Prospectus and any further amendments or
supplements to the Registration Statement and the Prospectus will
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conform,
in all material respects to the requirements of the Securities Act and 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 each part of the
Registration Statement and as of its date and the Closing Date (as defined in
Section 2(b)) 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 through
the Representatives or Debevoise & ▇▇▇▇▇▇▇▇ LLP on their behalf expressly
for use therein;
(f) (i) (A) At the time
of filing the Registration Statement, (B) at the time
of the most recent amendment thereto for the purposes of complying with Section
10(a)(3) of the Securities Act (whether such amendment was by post-effective
amendment, incorporated report filed pursuant to Section 13 or 15(d) of the
Exchange Act or form of prospectus), and (C) at the time
the Company or any person acting on its behalf (within the meaning, for this
clause only, of Rule 163(c) under the Securities Act) made any offer relating to
the Notes in reliance on the exemption of Rule 163 under the Securities Act, the
Company was a “well-known seasoned issuer” as defined in Rule 405 under the
Securities Act; and (ii) at the
earliest time after the filing of the Registration Statement that the Company or
another offering participant made a bona fide offer (within the meaning of Rule
164(h)(2) under the Securities Act) of the Notes, the Company was not an
“ineligible issuer” as defined in Rule 405 under the Securities
Act;
(g) The
Company has been duly incorporated and is validly existing in good standing
under the laws of the State of Delaware, with power and authority to own its
properties and conduct its business as described in the Pricing Disclosure
Package and the Prospectus; the Company’s authorized share capital is as set
forth in the Pricing Disclosure Package and 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;
(h) Each of
Connecticut General Life Insurance Company and Life Insurance Company of North
America (each being hereinafter referred to as a “Principal
Subsidiary”) has been duly formed and is validly existing in good
standing under the laws of the jurisdiction of its formation, with power and
authority (corporate and other) to own its properties and conduct its business
as described in the Pricing Disclosure Package and the Prospectus; and each
Principal Subsidiary of the Company maintains an insurance license or is duly
qualified to do business as a foreign corporation, limited partnership or
limited liability company in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business requires such
qualification; all of the issued and outstanding ownership interests of each
Principal Subsidiary of the
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Company
have been duly authorized and validly issued in accordance with the
organizational documents of such Principal Subsidiary; and the ownership
interests of each Principal Subsidiary owned by the Company, directly or through
subsidiaries, is owned free from liens, encumbrances and defects, except where
the failure to be so licensed or qualified or where such liens, encumbrances and
defects would not, individually or in the aggregate, have a material adverse
effect on the financial condition, business or results of operations of the
Company and its subsidiaries taken as a whole (“Material Adverse
Effect”);
(i) This
Agreement has been duly authorized, executed and delivered by the
Company;
(j) The Notes
and the Indenture have been duly authorized by the Company and, when the
Supplemental Indenture has been duly executed and delivered by the Company in
accordance with its terms, and assuming the valid execution and delivery thereof
by the Trustee, the Indenture will constitute, and, in the case of the Notes,
when they are delivered by the Company, paid for pursuant to this Agreement and
the Indenture and duly authenticated and delivered by the Trustee, the Notes
will, on the Closing Date, constitute, valid and legally binding obligations of
the Company, enforceable in accordance with their respective terms, subject, as
to enforcement, to bankruptcy, insolvency, fraudulent transfer, reorganization
and other laws of general applicability relating to or affecting creditors’
rights and to general equity principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law); the Notes
when delivered by the Company, paid for pursuant to this Agreement and the
Indenture and duly authenticated and delivered by the Trustee, will be entitled
to the benefits of the Indenture; and the Notes conform to the descriptions
thereof in the Pricing Disclosure Package and the Prospectus in all material
respects;
(k) The
issuance by the Company of the Notes, the compliance by the Company with all of
the provisions of this Agreement, the Notes and the Indenture, and the
consummation of the transactions contemplated herein and therein (a) 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 or
any subsidiary is a party or by which the Company or any subsidiary is bound or
to which any of the property or assets of the Company or any subsidiary is
subject, which conflict, breach, violation, or default would individually, or in
the aggregate, have a Material Adverse Effect; and (b) will not
result in any violation of (i) the
provisions of the Certificate of Incorporation or By-laws or other
organizational documents of the Company, or the charter, by-laws or other
organizational documents of any subsidiary of the Company or (ii) any existing
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company’s or any of its or its subsidiaries’
properties, which
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violation,
in the case of any of the Company’s subsidiaries, would, individually, or in the
aggregate, have a Material Adverse Effect;
(l) No
consent, approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the issue of
the Notes or the consummation by the Company of the other transactions
contemplated by this Agreement and the Indenture, except such consents,
approvals, authorizations, registrations or qualifications as may be required
under state securities or blue sky laws in connection with the issuance by the
Company of the Notes and the purchase and distribution of the Notes by the
Underwriters;
(m) The
Company and its Principal Subsidiaries possess certificates, authorities or
permits issued by appropriate governmental agencies or bodies necessary to
conduct the business now operated by them and have not received any notice of
proceedings relating to the revocation or modification of any such certificate,
authority or permit that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material Adverse
Effect;
(n) Except as
disclosed in the Pricing Disclosure Package and the Prospectus, there are no
pending actions, suits or proceedings against or affecting the Company, any of
its subsidiaries or any of their respective properties that are required to be
described in the Registration Statement, the Pricing Disclosure Package or the
Prospectus and are not so described or would not reasonably be expected to
materially and adversely affect the ability of the Company to perform its
obligations under the Indenture or this Agreement or which are otherwise
reasonably possible to be material in the context of the sale of the Notes; and
no such actions, suits or proceedings are threatened or, to the Company’s
knowledge, contemplated;
(o) 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 incorporated by
reference into the Registration Statement, Pricing Disclosure Package or the
Prospectus or required to be described in the Registration Statement, Pricing
Disclosure Package or the Prospectus which are not filed or incorporated by
reference or described as required;
(p) The
financial statements included or incorporated by reference in the Registration
Statement, the Pricing Disclosure Package and the 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 Registration Statement, the
Pricing Disclosure Package and the Prospectus, such financial statements have
been prepared in conformity with the generally accepted accounting principles in
the United States applied on a consistent basis;
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(q) Since the
date of the latest audited financial statements incorporated by reference in the
Registration Statement, the Pricing Disclosure Package and the Prospectus and
except as disclosed in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, which incorporates by reference the annual report on
Form 10-K for the fiscal year ended December 31, 2008, the quarterly report on
Form 10-Q for the quarter ended March 31, 2008, as well as certain current
reports on Form 8-K, as listed in such Prospectus, there has been no material
adverse change in the business, financial condition, prospects or results of
operations of the Company and its subsidiaries taken as a whole, and there has
been no dividend or distribution of any kind declared, paid or made by the
Company on any class of its equity interests, except the Company’s regular cash
dividend on its common stock, par value $0.25 per share;
(r) The
Company and its consolidated subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurances that (1) transactions
are executed in accordance with management’s general or specific authorization;
(2) transactions
are recorded as necessary to permit preparation of financial statements in
conformity with accounting principles generally accepted in the United States
(“GAAP”) and to
maintain accountability for assets; (3) access to
assets is permitted only in accordance with management’s general or specific
authorization; and (4) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences. Except as described in the Pricing Disclosure Package
and the Prospectus, since the end of the Company’s most recent audited fiscal
year, there has been (i) no material
weakness identified by management, or by the Company’s auditors and communicated
to management, in the Company’s internal control over financial reporting
(whether or not remediated) and (ii) no change in
the Company’s internal control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the Company’s internal
control over financial reporting;
(s) The
Company and its consolidated subsidiaries employ disclosure controls and other
procedures that are designed to ensure that information required to be disclosed
by the Company in the reports that it files or submits under the Exchange Act is
recorded, processed, summarized and reported, within the time periods specified
in the Commission’s rules and forms, and is accumulated and communicated to the
Company’s management, including its principal executive and principal financial
officer or officers, as appropriate, to allow timely decisions regarding
disclosure;
(t) PricewaterhouseCoopers
LLP, who have certified certain financial statements of the Company and its
subsidiaries, is an independent registered public accounting firm with respect
to the Company and its subsidiaries within the applicable rules and regulations
adopted by the Commission and the Public Accounting Oversight Board (United
States) and as required by the Securities Act; and
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(u) The
Company is not and, after giving effect to the offering and sale of the Notes
and the application of the proceeds thereof as described in the Pricing
Disclosure Package and the Prospectus, will not be an “investment company” as
defined in the Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission thereunder.
(v) Neither
the Company nor any of its subsidiaries nor, to the best knowledge of the
Company, any director, officer, agent, employee or other person associated with
or acting on behalf of the Company or any of its subsidiaries has (i) used any corporate
funds for any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; (ii) made any direct
or indirect unlawful payment to any foreign or domestic government official or
employee from corporate funds; (iii) violated or is
in violation of any provision of the Foreign Corrupt Practices Act of 1977; or
(iv) made any
bribe, rebate, payoff, influence payment, kickback or other unlawful
payment.
(w) The
operations of the Company and its subsidiaries are and have been conducted at
all times in compliance with applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes of all jurisdictions, the rules and
regulations thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental agency
(collectively, the “Money Laundering
Laws”) and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company
or any of its subsidiaries with respect to the Money Laundering Laws is pending
or, to the best knowledge of the Company, threatened.
(x) None of
the Company, any of its subsidiaries or, to the knowledge of the Company, any
director, officer, agent, employee or affiliate of the Company or any of its
subsidiaries is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”); and the
Company will not directly or indirectly use the proceeds of the offering of the
Notes hereunder, or lend, contribute or otherwise make available such proceeds
to any subsidiary, joint venture partner or other person or entity, for the
purpose of financing the activities of any person currently subject to any U.S.
sanctions administered by OFAC.
2. Sale and
Delivery.
(a) Subject
to the terms and conditions herein set forth, 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, the principal amount of
each series of Notes set forth in Schedule I opposite the name of such
Underwriter (plus an additional amount of Notes that such Underwriter may become
obligated to purchase pursuant to the provisions of Section 9 hereof) at the
price set forth on Schedule I, plus accrued interest, if any, from May 7,
2009.
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(b) The Notes
to be purchased by each Underwriter hereunder will be represented by registered
global notes in book entry form which will be deposited by or on behalf of the
Company with The Depository Trust Company (“DTC”) or its
designated custodian. The Company will deliver the Notes to the
Representatives, acting on behalf of the Underwriters for the account of each
Underwriter, against payment by or on behalf of such Underwriter of the amount
therefor, as set forth above, by wire transfer of Federal (same day) funds to a
commercial bank account located in the United States and designated in writing
at least forty eight hours prior to the Closing Date by the Company to the
Representatives, by causing DTC to credit the Notes to the account of one or
more of the Representatives, as designated prior to the Closing Date, at
DTC. The Company will cause the global certificates representing the
Notes to be made available to the Representatives, acting on behalf of the
Underwriters, for checking at least twenty four hours prior to the Closing Date
at the office of DTC or its designated custodian (the “Designated
Office”). The time and date of such delivery and payment shall
be 9:30 a.m., New York City time, on May 7, 2009 or such other time and date as
the Representatives and the Company may agree upon in writing. Such
time and date are herein called the “Closing
Date.”
(c) The
documents to be delivered on the Closing Date by or on behalf of the parties
hereto pursuant to Section 7 hereof, including the cross receipt for the Notes
and any additional documents requested by the Underwriters pursuant to Section
7(k) hereof, will be delivered at such time and date at the offices of Debevoise
& ▇▇▇▇▇▇▇▇ LLP, New York, New York or such other location as the
Representatives and the Company may agree in writing (the “Closing Location”),
and the Notes will be delivered at the Designated Office, all on the Closing
Date. A meeting will be held at the Closing Location at 1:00 p.m.,
New York City time or at such other time as the Representatives and the Company
may agree in writing, on the New York Business Day next preceding the Closing
Date, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 2, “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.
3. Free Writing
Prospectuses.
(a) The
Company represents and agrees that, without the prior consent of the
Representatives, it has not made and will not make any offer relating to the
Notes that would constitute a “free writing prospectus” as defined in Rule 405
under the Securities Act, other than a Permitted Free Writing Prospectus; each
Underwriter, severally and not jointly, represents and agrees that, without the
prior consent of the Company and the Representatives, it has not made and will
not make any offer relating to the Notes that would constitute a “free writing
prospectus” as defined in Rule 405 under the Securities
9
Act,
other than a Permitted Free Writing Prospectus or a free writing prospectus that
is not required to be filed by the Company pursuant to Rule 433, provided that the
Underwriters may use a term sheet substantially in the form of Schedule II
hereto without the consent of the Company; any such free writing prospectus
(which shall include the pricing term sheet discussed in Section 3(b) hereof),
the use of which has been consented to by the Company and the Representatives,
is listed on Schedule III and herein called a “Permitted Free Writing
Prospectus.”
(b) The
Company agrees to prepare a term sheet specifying the terms of the Notes not
contained in the Preliminary Prospectus, substantially in the form of Schedule
II hereto and approved by the Representatives, and to file such pricing term
sheet pursuant to Rule 433(d) under the Securities Act within the time period
prescribed by such Rule.
(c) The
Company and the Representatives have complied and will comply with the
requirements of Rule 433 under the Securities Act applicable to any free writing
prospectus, including timely Commission filing, where required, and
legending.
(d) The
Company agrees that if at any time following issuance of a Permitted Free
Writing Prospectus any event occurred or occurs as a result of which such
Permitted Free Writing Prospectus would conflict with the information in the
Registration Statement, the Preliminary Prospectus or the Prospectus, or the
Pricing Disclosure Package 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, not
misleading, the Company will give prompt notice thereof to the Representatives
and, if requested by the Representatives, will prepare and furnish without
charge to each Underwriter a free writing prospectus or other document, the use
of which has been consented to by the Representatives, which will correct such
conflict, statement or omission.
4. Covenants and
Agreements.
The
Company covenants and agrees with each of the Underwriters:
(a) That the
Company will furnish without charge to the Underwriters a copy of the
Registration Statement, including all documents incorporated by reference
therein and exhibits filed with the Registration Statement (other than exhibits
which are incorporated by reference and have previously been so furnished), and,
during the period mentioned in paragraph (c) below, as many written and
electronic copies of the Preliminary Prospectus, the Pricing Disclosure Package
and the Prospectus, any documents incorporated by reference therein at or after
the date thereof (including documents from which information has been so
incorporated) and any supplements and amendments thereto as each Underwriter may
reasonably request;
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(b) That the
Company will cause the Preliminary Prospectus and the Prospectus to be filed
pursuant to, and in compliance with, Rule 424(b) and will promptly advise the
Underwriters (i) when any
amendment to the Registration Statement shall have been filed; provided, that,
with respect to documents filed pursuant to the Exchange Act and incorporated by
reference into the Registration Statement, such notice shall only be required
during such time as the Underwriters are required in the reasonable opinion of
the Representatives, to deliver a prospectus (or the notice referred to in Rule
173(a) under the Securities Act), (ii) of any
request by the Commission for any amendment of the Registration Statement,
(iii) of
the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the institution or threatening of any proceeding
for that purpose or pursuant to Section 8A of the Securities Act against the
Company or related to the offering, and (iv) of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Notes for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. So long as any
Underwriter is required in the reasonable opinion of the Representatives to
deliver a prospectus (or the notice referred to in Rule 173(a) under the
Securities Act), the Company will not file any amendment to the Registration
Statement or supplement to the Preliminary Prospectus or the Prospectus unless
the Company has furnished one copy of such amendment or supplement to each of
the Representatives and to Debevoise & ▇▇▇▇▇▇▇▇ LLP, and, if such amendment
or supplement is to be filed on or prior to the Closing Date, or under
circumstances where the Underwriters are required in the reasonable opinion of
the Representatives, to deliver a prospectus (or the notice referred to in Rule
173(a) under the Securities Act), the Representatives, shall not reasonably have
objected thereto. If the Commission shall issue a stop order
suspending the effectiveness of the Registration Statement, the Company will
take such steps to obtain the lifting of that order as in the best judgment of
the Company are not contrary to the interests of the Company;
(c) That if,
at any time when in the opinion of the Representatives the Pricing Disclosure
Package or the Prospectus (or the notice referred to in Rule 173(a) under the
Securities Act) is required by law to be delivered by an Underwriter or a
dealer, any event shall occur as a result of which it is necessary, in the
opinion of the Representatives or counsel for the Company, to amend or
supplement the Pricing Disclosure Package or the Prospectus or modify the
information incorporated by reference therein in order to make the statements
therein, in light of the circumstances existing when the Pricing Disclosure
Package or the Prospectus (or the notice referred to in Rule 173(a) under the
Securities Act) is delivered to a purchaser, not misleading, or if it shall be
necessary in the opinion of the Representatives, to amend or supplement the
Pricing Disclosure Package or the Prospectus or modify such information to
comply with law, the Company will forthwith (i) prepare and
furnish, at its own expense, to the Underwriters and to the dealers (whose names
and addresses the Underwriters will furnish to the Company) to whom Notes may
have been sold by the Underwriters and to any other dealers upon reasonable
request, either amendments or supplements to the Pricing Disclosure Package or
the Prospectus or (ii) file with
the Commission documents incorporated by reference in the Pricing Disclosure
Package and Prospectus, which shall be so supplied to the Underwriters and such
dealers, in either case so that the statements in the Pricing Disclosure Package
11
or the
Prospectus as so amended, supplemented or modified will not, in light of the
circumstances when the Pricing Disclosure Package or the Prospectus (or the
notice referred to in Rule 173(a) under the Securities Act) is delivered to a
purchaser, be misleading or so that the Pricing Disclosure Package and the
Prospectus will comply with law;
(d) That, if
required, the Company will endeavor to qualify, at its expense, the
Notes for offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Underwriters shall reasonably request and to pay all filing
fees, reasonable expenses and legal fees in connection therewith and in
connection with the determination of the eligibility for investment of the
Notes; provided, that the Company shall not be required to qualify as a foreign
corporation or a dealer in securities or to file any consents to service of
process under the laws of any jurisdiction;
(e) That the
Company will pay the required Commission filing fees relating to the Notes
within the time required by Rule 456(b)(1) under the Securities Act without
regard to the proviso therein and otherwise in accordance with Rules 456(b) and
457(r) under the Securities Act;
(f) That the
Company will make generally available to its security holders and the holders of
the Notes as soon as practicable an earnings statement of the Company covering a
twelve month period beginning after the Closing Date which shall satisfy the
provisions of Section 11(a) of the Securities Act and the rules and regulations
of the Commission thereunder (including Rule 158 under the Securities Act);
and
(g) That
during the period beginning on the date of this Agreement and continuing to and
including the Closing Date, the Company will not offer, sell, contract to sell
or otherwise dispose of any notes, any security convertible into or exchangeable
into or exercisable for notes or any other debt securities substantially similar
to the Notes (except for the Notes issued pursuant to this Agreement), without
the prior written consent of the Representatives.
5. Certain Agreements of the
Underwriters.
(a) Each
Underwriter severally represents, warrants and agrees that: in relation to each
Member State of the European Economic Area which has implemented the Prospectus
Directive (each, a “Relevant Member
State”), it has not made and will not make an offer of the Notes to the
public in that Relevant Member State, except that it may make an offer of Notes
to the public in that Relevant Member State at any time under the following
exemptions under the Prospectus Directive (as defined below), if they have been
implemented in that Relevant Member State: (i) to legal
entities which are
12
authorized
or regulated to operate in the financial markets or, if not so authorized or
regulated, whose corporate purpose is solely to invest in securities; (ii) to any legal
entity which has two or more of the following (1) an average of
at least 250 employees during the last financial year, (2) a total
balance sheet of more than €43,000,000 and (3) an annual net
turnover of more than €50,000,000, as shown in its last annual or consolidated
accounts; (iii) to fewer
than 100 natural or legal persons (other than qualified investors as defined in
the Prospectus Directive) subject to obtaining the prior consent of the
Representatives for any such offer; or (iv) in any other
circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such
offer of Notes to the public shall result in a requirement for the publication
by the Company or the Underwriters of a prospectus pursuant to Article 3 of the
Prospectus Directive.
For the
purposes of the preceding paragraph, the expression “offer of Notes to the
public” in relation to any Notes in any Relevant Member State means the
communication in any form and by any means of sufficient information on the
terms of the offer and the Notes to be offered so as to enable an investor to
decide to purchase the Notes, as the same may be varied in that Member State by
any measure implementing the Prospectus Directive in that Member State and the
expression “Prospectus Directive” means Directive 2003/71/EC and includes any
relevant implementing measure in each Relevant Member State.
6. Expenses.
The
Company covenants and agrees with the several Underwriters that the Company will
pay or cause to be paid the following: (i) all expenses
in connection with the preparation, printing and filing of the Registration
Statement as originally filed and of each amendment thereto; (ii) the fees,
disbursements and expenses of the Company’s counsel and accountants in
connection with the issue of the Notes and all other expenses in connection with
the preparation, printing and filing of the Basic Prospectus, any Permitted Free
Writing Prospectus, the Preliminary Prospectus, the Pricing Disclosure Package
and the Prospectus, and any amendments and supplements thereto and the mailing
and delivering of copies thereof to the Underwriters and dealers; (iii) all
reasonable expenses in connection with the qualification of the Notes for
offering and sale under state securities laws as provided in Section 4(d)
hereof, including the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky and legal investment surveys; (iv) any fees
charged by rating services for rating the Notes; (v) the cost of
preparing the Notes; (vi) the fees and
expenses of the Trustee and any agent of the Trustee and the fees and
disbursements of counsel for the Trustee in connection with the Indenture; and
(vii) 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 this
Section, and Sections 8 and 11 hereof, the Underwriters will pay all of their
own costs and expenses, including any advertising
13
expenses
connected with any offers they may make and the fees, disbursements and expenses
of counsel for the Underwriters.
7. Conditions of Underwriters’
Obligations.
The
obligations of the Underwriters hereunder shall be subject to the accuracy, at
and (except as otherwise stated herein) as of the date hereof and at and as of
the Closing Date, of the representations and warranties made herein by the
Company, to compliance at and as of the Closing Date by the Company with its
covenants and agreements herein contained and the other provisions hereof to be
satisfied at or prior to the Closing Date, and to the following additional
conditions:
(a) (i) No stop order
suspending the effectiveness of the Registration Statement shall be in effect,
and no proceeding for such purpose or pursuant to Section 8A of the Securities
Act against the Company or related to the offering shall be pending before or
threatened by the Commission, (ii) the
Prospectus shall have been filed with the Commission pursuant to Rule 424(b)
within the applicable time period prescribed for filing by the rules and
regulations under the Securities Act and in accordance herewith and each
Permitted Free Writing Prospectus shall have been filed by the Company with the
Commission within the applicable time periods prescribed for such filings by,
and otherwise in compliance with Rule 433 under the Securities Act to the extent
so required and (iii) the
Underwriters shall have received on and as of the Closing Date, a certificate
dated such date, signed by an executive officer (including, without limitation,
the Treasurer) of the Company to the foregoing effect.
(b) Subsequent
to the earlier of the Applicable Time and the execution and delivery of this
Agreement, there shall not have occurred (i) any change in
the business, financial condition, prospects or results of operations of the
Company and its subsidiaries taken as one enterprise which, in the reasonable
judgment of the Representatives, is material and adverse and makes it
impractical or inadvisable to proceed with completion of the offering or the
sale of and payment for the Notes on the terms set forth herein; (ii) any
downgrading in the rating of any debt securities of the Company or the financial
strength rating of any Principal Subsidiary of the Company by any “nationally
recognized statistical rating organization” (as defined for purposes of Rule
436(g) under the Securities Act), or any public announcement that any such
organization has newly placed under surveillance or review any such rating
(other than an announcement with positive implications of a possible upgrading,
and no implication of a possible downgrading, of such rating); (iii) any
material suspension or material limitation of trading in securities generally on
the New York Stock Exchange, or on the over-the-counter market or any suspension
of trading of any securities of the Company on any exchange or in the
over-the-counter market; (iv) any general
moratorium on commercial banking activities declared by U.S. Federal or New York
State authorities; (v) any major
disruption of settlements of securities or clearance services in the United
States or (vi) any act of
terrorism in the United States, any attack on, outbreak or escalation of
hostilities
14
involving
the United States, any declaration of war by Congress or any other national or
international calamity or crisis if, in the judgment of the Representatives, the
effect of any such attack, outbreak, escalation, act, declaration, calamity or
crisis on the financial markets makes it impractical or inadvisable to proceed
with completion of the offering or sale of and payment for the Notes on the
terms set forth herein.
(c) Debevoise
& ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, shall have furnished to you a
negative assurance letter and such opinion or opinions, each dated the Closing
Date, each with respect to such matters as you may reasonably request, and such
counsel shall have received such papers and information as they may reasonably
request to enable them to provide negative assurance with respect to such
matters or to pass upon such matters.
(d) ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, Executive Vice President and General Counsel of the Company, or ▇▇▇▇▇▇
▇▇▇▇▇, Corporate Secretary, Vice President and Deputy General Counsel of the
Company, shall have furnished to you her written opinion, dated the Closing
Date, substantially in the form of Exhibit A hereto in
form and substance satisfactory to you.
(e) ▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Company, shall have furnished to you their
written opinion, dated the Closing Date, substantially in the form of Exhibit B hereto in
form and substance satisfactory to you.
(f) At the
time of execution of this Agreement, PriceWaterhouseCoopers LLC shall have
furnished to you a letter dated the date of such execution, substantially in the
form heretofore supplied and deemed satisfactory to you.
(g) At the
Closing Date, PriceWaterhouseCoopers LLC shall have furnished you a letter,
dated the Closing Date, to the effect that such accountants reaffirm, as of the
Closing Date and as though made on the Closing Date, the statements made in the
letter furnished by such accountants pursuant to paragraph (f) of this
Section 7, except that the specified date referred to in such letter will be a
date not more than three business days prior to the Closing Date.
(h) The
Company shall have furnished or caused to be furnished to you at the Closing
Date certificates of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers, to the
best of their knowledge after reasonable investigation, shall state that (i) the
representations and warranties of the Company in this Agreement are true and
correct, (ii) the Company
has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date, (iii) subsequent
to the date of the most recent financial statements in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, there has been no
material adverse change in the business, financial condition, prospects or
results of operations of the Company and its subsidiaries taken as
15
a whole
except as set forth in or contemplated by the Pricing Disclosure Package and the
Prospectus, (iv) to the
effect set forth in paragraph (b)(ii) above, and (v) as to such
other matters as you may reasonably request.
(i) No action
shall have been taken and no statute, rule, regulation or order shall have been
enacted, adopted or issued by any governmental agency or body which would as of
the Closing Date, prevent the issuance or the sale of the Notes; and no
injunction, restraining order or order of any other nature by any court of
competent jurisdiction shall have been issued as of the Closing Date which would
prevent the issuance or sale of the Notes.
(j) The Notes
shall be eligible for clearance and settlement through DTC.
(k) On or
prior to the Closing Date, the Company shall have furnished to the
Representatives such further certificates and documents as the Representatives
may reasonably request.
8. Indemnification and
Contribution.
(a) The
Company will indemnify and hold harmless each Underwriter, its affiliates,
directors and officers and each person, if any, who controls such Underwriter
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, reasonable legal fees and other
reasonable expenses incurred in connection with any suit, action or proceeding
or any claim asserted, as such fees and expenses are incurred), joint or
several, to which such person may become subject, under the Securities 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, any
preliminary prospectus, the Basic Prospectus, the Preliminary Prospectus, any
Permitted Free Writing Prospectus, the Pricing Disclosure Package, the
Prospectus or any free writing prospectus used by the Company other than a
Permitted Free Writing Prospectus (or any such document, as from time to time
amended, or deemed to be amended, supplemented or modified), 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; 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 the
Registration Statement, any preliminary prospectus, the Basic Prospectus, the
Preliminary Prospectus, any Permitted Free Writing Prospectus, the Pricing
Disclosure Package, the Prospectus or any free writing prospectus used by the
Company other than a Permitted Free Writing Prospectus (or any such document, as
from time to time amended, or deemed to be amended, supplemented or modified),
in reliance
16
upon and
in conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use therein.
(b) Each
Underwriter will, severally and not jointly, indemnify and hold harmless the
Company, its directors, its officers and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, to the same extent as the indemnity set forth in paragraph
(a) above, but only to the extent that such untrue statement or alleged
untrue statement or omission or alleged omission was made in the Registration
Statement, any preliminary prospectus, the Basic Prospectus, the Preliminary
Prospectus, any Permitted Free Writing Prospectus, the Pricing Disclosure
Package, the Prospectus or any free writing prospectus used by the Company other
than a Permitted Free Writing Prospectus (or any such document, as from time to
time amended, or deemed to be amended, supplemented or modified), in reliance
upon and in conformity with written information furnished to the Company by such
Underwriter through the Representatives expressly for use therein.
(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 under such subsection. In case any such action
shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. In any such action, any
indemnified party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such indemnified party
unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
contrary; (ii) the
indemnifying party has failed within a reasonable time to retain counsel
reasonably satisfactory to the indemnified party; (iii) the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it that are different from or in addition to those
available to the indemnifying party; or (iv) the named
parties in any such action (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interest between them. It is understood and agreed that the
indemnifying party shall not,
17
in
connection with any action or related action in the same jurisdiction, be liable
for the fees and expenses of more than one separate firm (in addition to any
local counsel) for all indemnified parties, and that all such fees and expenses
shall be reimbursed as they are incurred. Any such separate firm for
any Underwriter, its affiliates, directors and officers and any control persons
of such Underwriter shall be designated in writing by the Representatives and
any such separate firm for the Company, its directors, its officers and any
control persons of the Company shall be designated in writing by the
Company. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify each indemnified party from and against
any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action 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 8 is unavailable to or insufficient
to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other from
the offering of the Notes. 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 considerations. 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 the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
on the one hand or the Underwriters on
18
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 reasonable legal or other reasonable expenses incurred by such indemnified
party in connection with 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 Notes 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 Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters’ obligations in this
subsection (d) to contribute are several in proportion to their
respective underwriting obligations and not joint.
9. Substitution of
Underwriters.
If any
Underwriter shall default in its obligation to purchase the Notes which it has
agreed to purchase hereunder and the aggregate principal amount of such Notes
which such defaulting Underwriter agreed but failed to purchase does not exceed
10% of the total principal amount of Notes, the non defaulting Underwriters may
make arrangements satisfactory to the Company for the purchase of the aggregate
principal amount of such Notes by other persons, including any of the non
defaulting Underwriters, but if no such arrangements are made by the Closing
Date, the non defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Notes that
such defaulting Underwriter agreed but failed to purchase. If any
Underwriter or Underwriters shall so default and the aggregate principal amount
of Notes with respect to which such default or defaults occur exceeds 10% of the
total principal amount of Notes and arrangements satisfactory to the non
defaulting Underwriters and the Company for the purchase of such Notes by other
persons are not made within 36 hours after such default, this agreement will
terminate.
If the
non defaulting Underwriter or Underwriters or substituted underwriter or
underwriters are required hereby or agree to take up all or part of the Notes of
the defaulting Underwriter as provided in this Section 9, (i) the Company
shall have the right to postpone the Closing Date for a period of not more than
five full business days, in order that the Company may effect whatever changes
may thereby be made necessary in
19
the
Registration Statement or Prospectus or in any other documents or arrangements,
and the Company agrees to promptly file any amendments to the Registration
Statement or supplements to the Prospectus which may thereby be made necessary,
and (ii) the
respective aggregate principal amount of Notes which the non defaulting
Underwriters or substituted purchaser or purchasers shall thereafter be
obligated to purchase shall be taken as the basis of their underwriting
obligation for all purposes of this Agreement. Nothing herein
contained shall relieve any defaulting Underwriter of its liability to the
Company or the non defaulting Underwriters for damages occasioned by its default
hereunder. Any termination of this Agreement pursuant to this Section
9 shall be without liability on the part of the non defaulting Underwriters or
the Company, other than as provided in Sections 8 and 11.
10. Survival of Indemnities,
Representations, Warranties, etc.
The
respective indemnities, agreements, representations, warranties and other
statements of the Company and the several Underwriters, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Notes.
11. Termination.
If this
Agreement shall be terminated pursuant to Section 9 or if for any reason the
purchase of the Notes by the Underwriters is not consummated, the Company shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 6 and the respective obligations of the Company and the Underwriters
pursuant to Section 8 shall remain in effect. If the purchase of the
Notes by the Underwriters is not consummated for any reason other than solely
because of the termination of this Agreement pursuant to Section 9 or the
occurrence of any event specified in clause (iii) (other than any
suspension of trading specific to the Company's securities), (iv), (v) or
(vi) of Section 7(b), the Company will reimburse the Underwriters for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Notes.
12. Notices.
In all
dealings hereunder, the Representatives shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by the Representatives.
20
All
statements, requests, notices and agreements hereunder shall be in writing, and
(i) if to
the Underwriters shall be delivered or sent by mail, telex or facsimile
transmission to the Underwriters in care of:
Citigroup
Global Markets Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Transaction Execution Group (facsimile: (▇▇▇) ▇▇▇-▇▇▇▇);
▇.▇.
▇▇▇▇▇▇ Securities Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
High Grade Syndicate (facsimile: (▇▇▇) ▇▇▇-▇▇▇▇);
UBS
Securities LLC, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Fixed Income Syndicate (facsimile: (▇▇▇) ▇▇▇-▇▇▇▇);
and
(ii) if to
the Company shall be delivered or sent by mail, telex or facsimile transmission
to CIGNA Corporation, Two Liberty Place, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Executive Vice President and General Counsel
(facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇). Any such statements,
requests, notices or agreements shall take effect upon receipt
thereof.
13. Successors.
This
Agreement shall inure to the benefit of and be binding upon the several
Underwriters and the Company and their respective successors and the directors,
trustees, officers and controlling persons referred to in Section 8 of this
Agreement. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person other than the persons
mentioned in the preceding sentence any legal or equitable right, remedy or
claim under or in respect of this Agreement, or any provisions herein contained;
this Agreement and all conditions and provisions hereof being intended to be,
and being, for the sole and exclusive benefit of such persons and for the
benefit of no other person; except that the representations, warranties,
covenants, agreements and indemnities of the Company contained in this Agreement
shall also be for the benefit of the person or persons, if any, who control any
Underwriter within the meaning of the Securities Act or the Exchange Act, and
the representations, warranties, covenants, agreements and indemnities of the
several Underwriters shall also be for the benefit of each director of the
Company, each person who has signed the Registration Statement and the person or
persons, if any, who control the Company within the meaning of the Securities
Act.
14. Relationship.
The
Company acknowledges and agrees that (i) the purchase
and sale of the Notes pursuant to this Agreement is an arm's-length commercial
transaction between the Company, on the one hand, and the several Underwriters,
on the other, (ii) in
connection therewith and with the process leading to such transaction each
Underwriter is acting
21
solely as
a principal and not the agent or fiduciary of the Company, (iii) no
Underwriter has assumed an advisory or fiduciary responsibility in favor of the
Company with respect to the offering contemplated hereby or the process leading
thereto (irrespective of whether such Underwriter has advised or is currently
advising the Company on other matters) or any other obligation to the Company
except the obligations expressly set forth in this Agreement and (iv) the Company
has consulted its own legal and financial advisors to the extent it deemed
appropriate. The Company agrees that it will not claim that the
Underwriters, or any of them, has rendered advisory services of any nature or
respect, or owes a fiduciary or similar duty to the Company, in connection with
such transaction or the process leading thereto.
15. Applicable
Law.
This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York.
The
Company hereby submits to the non-exclusive jurisdiction of the Federal and
state courts in the Borough of Manhattan in The City of New York in any suit or
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
16. Counterparts.
This
Agreement may be executed by any one or more of the parties hereto 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. Delivery of an executed signature page of this Agreement
by facsimile or any other rapid transmission device designed to produce a
written record of the communication transmitted shall be as effective as
delivery of a manually executed counterpart thereof.
[signature
page follows]
22
If the
foregoing is in accordance with your understanding, please sign and return to us
five counterparts hereof, and upon the acceptance hereof by you, on behalf of
each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement between each of the Underwriters and the
Company. It is understood that your acceptance of this letter on
behalf of each of the Underwriters is 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 your part as
to the authority of the signers thereof.
Very
truly yours,
CIGNA
Corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
Title: Vice
President and Treasurer
Accepted
as of the date hereof:
CITIGROUP
GLOBAL MARKETS INC.
▇.▇.
▇▇▇▇▇▇ SECURITIES INC.
UBS
SECURITIES LLC
as the Representatives of the several
Underwriters
By:CITIGROUP
GLOBAL MARKETS INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
Title: Managing
Director
By:▇.▇.
▇▇▇▇▇▇ SECURITIES INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Title: Vice
President
By: UBS
SECURITIES LLC
By:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Name:
▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing
Director
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Title: Associate
Director
SCHEDULE
I
|
Notes
due
2019
|
||||
|
Purchase
price payable by the Underwriters
|
99.061 | % | ||
|
Principal amount to be
purchased by each Underwriter
|
||||
|
Citigroup
Global Markets
Inc.
|
$ | 73,500,000 | ||
|
▇.▇.
▇▇▇▇▇▇ Securities
Inc.
|
73,500,000 | |||
|
UBS
Securities
LLC
|
42,000,000 | |||
|
Banc
of America Securities
LLC
|
17,500,000 | |||
|
Barclays
Capital
Inc.
|
17,500,000 | |||
|
Daiwa
Securities America
Inc.
|
17,500,000 | |||
|
Deutsche
Bank Securities
Inc.
|
17,500,000 | |||
|
▇▇▇▇▇▇▇,
Sachs &
Co.
|
17,500,000 | |||
|
Mitsubishi
UFJ Securities (USA),
Inc..
|
17,500,000 | |||
|
SunTrust
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
Inc.
|
17,500,000 | |||
|
Wachovia
Capital Markets,
LLC
|
17,500,000 | |||
|
BNY
Mellon Capital Markets,
LLC
|
7,000,000 | |||
|
HSBC
Securities (USA)
Inc.
|
7,000,000 | |||
|
PNC
Capital Markets
LLC
|
7,000,000 | |||
|
Total
|
$ | 350,000,000 | ||