EXHIBIT 1.1
Unitrin, Inc.
Debt Securities
-----------------
Underwriting Agreement
June 26, 2002
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
Banc One Capital Markets, Inc.,
Wachovia Securities, Inc.,
BNY Capital Markets, Inc.,
Tokyo-Mitsubishi International plc,
▇▇▇▇▇ Fargo Brokerage Services, LLC,
c/o Goldman, ▇▇▇▇▇ & Co.,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Ladies and Gentlemen:
From time to time Unitrin, Inc., a Delaware corporation (the
"Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms
and conditions stated herein and therein, to issue and sell to the firms
named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and
the securities specified therein) certain of its debt securities (the
"Securities") specified in Schedule II to such Pricing Agreement (with
respect to such Pricing Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto
and in or pursuant to the indenture (the "Indenture") identified in such
Pricing Agreement.
1. Particular sales of Designated Securities may be made from time
to time to the Underwriters of such Securities, for whom the firms
designated as representatives of the Underwriters of such Securities in the
Pricing Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to an Underwriter or
Underwriters who act without any firm being designated as its or their
representatives. This Underwriting Agreement shall not be construed as an
obligation of the Company to sell any of the Securities or as an obligation
of any of the Underwriters to purchase the Securities. The obligation of
the Company to issue and sell any of the Securities and the obligation of
any of the Underwriters to purchase any of the Securities shall be
evidenced by the Pricing Agreement with respect to the Designated
Securities specified therein. Each Pricing Agreement shall specify the
aggregate principal amount of such Designated Securities, the initial
public offering price of such Designated Securities, the purchase price to
the Underwriters of such Designated Securities, the names of the
Underwriters of such Designated Securities,
the names of the Representatives of such Underwriters and the principal
amount of such Designated Securities to be purchased by each Underwriter and
shall set forth the date, time and manner of delivery of such Designated
Securities and payment therefor. The Pricing Agreement shall also specify (to
the extent not set forth in the Indenture and the registration statement and
prospectus with respect thereto) the terms of such Designated Securities. A
Pricing Agreement shall be in the form of an executed writing (which may be
in counterparts), and may be evidenced by an exchange of telegraphic
communications or any other rapid transmission device designed to produce a
written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
2. The Company represents and warrants to, and agrees with, each
of the Underwriters that:
(a) A registration statement on Form S-3 (File No.
333-87866) (including any pre-effective amendment thereto)
(together, the "Initial Registration Statement") in respect of the
Securities has been filed with the Securities and Exchange
Commission (the "Commission"); the Initial Registration Statement
and any post-effective amendment thereto, each in the form
heretofore delivered or to be delivered to the Representatives
and, excluding exhibits to the Initial Registration Statement, but
including all documents incorporated by reference in the
prospectus contained therein, to the Representatives for each of
the other Underwriters, have been declared effective by the
Commission in such form; other than a registration statement, if
any, increasing the size of the offering (a "Rule 462(b)
Registration Statement"), filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended (the "Act"), which became
effective upon filing, no other document with respect to the
Initial Registration Statement or document incorporated by
reference therein has heretofore been filed or transmitted for
filing with the Commission (other than prospectuses filed pursuant
to Rule 424(b) of the rules and regulations of the Commission
under the Act, each in the form heretofore delivered to the
Representatives); and no stop order suspending the effectiveness
of the Initial Registration Statement, any post-effective
amendment thereto or the Rule 462(b) Registration Statement, if
any, has been issued and no proceeding for that purpose has been
initiated or threatened by the Commission (any preliminary
prospectus included in the Initial Registration Statement or filed
with the Commission pursuant to Rule 424(a) under the Act, is
hereinafter called a "Preliminary Prospectus"; the various parts
of the Initial Registration Statement, any post-effective
amendment thereto and the Rule 462(b) Registration Statement, if
any, including all exhibits thereto and the documents incorporated
by reference in the prospectus contained in the Initial
Registration Statement at the time such part of the Initial
Registration Statement became effective but excluding Form T-1,
each as amended at the time such part of the Initial Registration
Statement became effective or such part of the Rule 462(b)
Registration Statement, if any, became or hereafter becomes
effective, are hereinafter collectively called the "Registration
Statement"; the prospectus relating to the Securities, in the form
in which it has most recently been filed, or transmitted for
filing, with the Commission on or prior to the date of this
Agreement, being hereinafter called the "Prospectus"; any
reference herein to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to the applicable form under the
Act, as of the date of such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment or supplement to any
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Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any documents filed after the date of such
Preliminary Prospectus or Prospectus, as the case may be, under
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment to the Initial Registration Statement shall be deemed to
refer to and include any annual report of the Company filed
pursuant to Sections 13(a) or 15(d) of the Exchange Act after the
effective date of the Initial Registration Statement that is
incorporated by reference in the Registration Statement; and any
reference to the Prospectus as amended or supplemented shall be
deemed to refer to the Prospectus as amended or supplemented in
relation to the applicable Designated Securities in the form in
which it is filed with the Commission pursuant to Rule 424(b)
under the Act in accordance with Section 5(a) hereof, including
any documents incorporated by reference therein as of the date of
such filing);
(b) The documents incorporated by reference in the
Prospectus and any amendment or supplement thereto, when they
became effective or were filed with the Commission, as the case
may be, (i) conformed in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and (ii) none of such
documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when
such documents become effective or are filed with the Commission,
as the case may be, (i) will conform in all material respects to
the requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder and
(ii) will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by
an Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities;
(c) The Registration Statement and the Prospectus conform,
and any further amendments or supplements to the Registration
Statement or the Prospectus will conform, in all material respects
to the requirements of the Act and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act") and the rules and
regulations of the Commission thereunder and do not and will not,
as of the applicable effective date as to the Registration
Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement
thereto, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided, however,
that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented
relating to such Securities;
(d) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial
statements included or incorporated by reference in the
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Prospectus any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental
action, order or decree which loss or interference is material to
the Company and its subsidiaries, take as a whole, otherwise than as
set forth or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any
change in the capital stock (other than issuances of the Company's
common stock, par value $0.10 per share (the "Common Stock") in
connection with the Company's existing stock option and similar
stock incentive plans) or long-term debt of the Company or any of
its subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders'
equity or results of operations of the Company and its subsidiaries,
taken as a whole, otherwise than as set forth or contemplated in the
Prospectus;
(e) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the Prospectus;
(f) The Company and its subsidiaries have good and
marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them, in each
case free and clear of all liens, encumbrances and defects except
such as are described in the Prospectus or such as would not
individually or in the aggregate reasonably be expected to have a
material adverse effect on the consolidated financial position,
results of operations or business of the Company and its
subsidiaries, taken as a whole (a "Material Adverse Effect"); and
any real property and buildings held under lease by the Company
and its subsidiaries are held by them under valid, subsisting and
enforceable leases except as would not have a Material Adverse
Effect;
(g) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital
stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable;
(h) The Designated Securities have been duly authorized by
the Company, and, when the Designated Securities are issued and
delivered pursuant to this Agreement and the Pricing Agreement
with respect to such Designated Securities, and authenticated by
the Trustee pursuant to the provisions of the Indenture, against
payment therefor by the Underwriters, such Designated Securities
will have been duly executed, issued and delivered by the Company
and will constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture, which
will be substantially in the form filed as an exhibit to the
Registration Statement; the Indenture has been duly authorized by
the Company and qualified under the Trust Indenture Act and, at
the Time of Delivery for such Designated Securities (as defined in
Section 4 hereof), the Indenture will constitute a valid and
legally binding agreement of the Company enforceable against the
Company in accordance with its terms, subject, as to enforcement,
to bankruptcy, insolvency, fraudulent conveyance or transfer,
moratorium, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles (regardless of whether enforcement thereof is sought in
equity or at law); and the Indenture conforms in all material
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respects, and the Designated Securities will conform in all
material respects, to the descriptions thereof contained in the
Prospectus as amended or supplemented with respect to such
Designated Securities;
(i) The issue and sale of the Securities and the compliance
by the Company with all of the provisions of the Securities, the
Indenture, this Agreement and any Pricing Agreement, and the
consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, any
material indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company is a party or
by which the Company is bound or to which any of the property or
assets of the Company is subject and no consent, approval,
authorization, order, registration or qualification of or with any
such court or insurance regulatory agency or other governmental
agency or body is required for the issue and sale of the
Securities or the consummation by the Company of the transactions
contemplated by this Agreement or any Pricing Agreement or the
Indenture, except (i) such as have been, or will have been prior
to the Time of Delivery, obtained under the Act and the Trust
Indenture Act, (ii) such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters and (iii) such
consents, approvals, authorizations, registrations or
qualifications the failure to obtain which would not materially
adversely affect the issue and sale of the Designated Securities
or the consummation by the Company of the transactions
contemplated by this Agreement or any Pricing Agreement or the
Indenture;
(j) The statements set forth in the Prospectus under the
captions "Description of Notes" and "Description of Debt
Securities", insofar as they purport to summarize certain
provisions of the documents referred to therein, and under the
captions "Plan of Distribution" and "Underwriting", insofar as
they purport to summarize certain provisions of the laws, this
Agreement and the Pricing Agreement referred to therein, fairly
summarize such provisions and laws in all material respects;
(k) Neither the Company nor any of its significant
subsidiaries, as defined in Rule 1-02(w) of Regulation S-X under
the Securities Act (the "Significant Subsidiaries") is (i) in
violation of its Certificate of Incorporation or By-laws or (ii)
in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or
any of its properties may be bound, except in the case of clause
(ii) for such violations or defaults as would not have a Material
Adverse Effect;
(l) Other than as set forth in the Prospectus or in any
document incorporated therein by reference, there are no legal or
governmental proceedings pending to which the Company or any of
its subsidiaries is a party or of 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,
would have a Material Adverse Effect; and, to the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
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(m) The Company is not and, after giving effect to the
offering and sale of the Securities, will not be an "investment
company", as such term is defined in the Investment Company Act of
1940, as amended (the "Investment Company Act");
(n) KPMG LLP, who have certified certain financial
statements of the Company and its subsidiaries, and Deloitte &
Touche LLP, are each independent public accountants as required by
the Act and the rules and regulations of the Commission
thereunder; and
(o) To the Company's knowledge, no insurance regulatory
authority or body has issued any order or decree impairing,
restricting or prohibiting the payment of dividends by any
subsidiary of the Company that is required to be organized or
licensed as an insurance company or reinsurance company in its
jurisdiction of incorporation (each, an "Insurance Subsidiary") to
its parent, except for any such order or decree as would not have
a Material Adverse Effect.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the
release of such Designated Securities, the several Underwriters propose to
offer such Designated Securities for sale upon the terms and conditions set
forth in the Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in the form specified
in such Pricing Agreement, and in such authorized denominations and
registered in such names as the Representatives may request upon at least
forty-eight hours' prior notice to the Company, shall be delivered by or on
behalf of the Company to the Representatives for the account of such
Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor by wire transfer of Federal (same-day) funds to the
account specified by the Company to the Representatives at least
forty-eight hours in advance or at such other place and time and date as
the Representatives and the Company may agree upon in writing, such time
and date being herein called the "Time of Delivery" for such Securities.
5. The Company agrees with each of the Underwriters of any
Designated Securities:
(a) To prepare the Prospectus as amended or supplemented in
relation to the applicable Designated Securities in a form
approved by the Representatives and to file such Prospectus
pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day
following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Securities or, if
applicable, such earlier time as may be required by Rule 424(b);
to make no further amendment or any supplement to the Registration
Statement or Prospectus as amended or supplemented after the date
of the Pricing Agreement relating to such Securities and prior to
the Time of Delivery for such Securities which shall be
disapproved by the Representatives for such Securities promptly
after reasonable notice thereof; to advise the Representatives
promptly of any such amendment or supplement after such Time of
Delivery and furnish the Representatives with copies thereof; to
file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
for so long as the delivery of a prospectus is required in
connection with the offering or sale of such Securities, and
during such same period to advise the Representatives, promptly after
it receives notice thereof, of the time when any amendment to the
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Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been
filed with the Commission, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
prospectus relating to the Securities, of the suspension of the
qualification of such Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the
issuance of any such stop order or of any such order preventing or
suspending the use of any prospectus relating to the Securities or
suspending any such qualification, to promptly use its best efforts
to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities
for offering and sale under the securities laws of such
jurisdictions as the Representatives may request and to comply
with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of such 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) Prior to 10:00 a.m., New York City time, on the
business day next succeeding the date of this Agreement and from
time to time, to furnish the Underwriters with written and
electronic copies of the Prospectus in New York City as amended or
supplemented in such quantities as the Representatives may
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 Prospectus as then amended or
supplemented would include an untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made when such Prospectus is delivered, not misleading,
or, if for any other reason it shall be necessary during such same
period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act, the Exchange Act or
the Trust Indenture Act, to notify the Representatives and upon
their request to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in securities
as many written and electronic copies as the Representatives may
from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or
omission or effect such compliance;
(d) To make generally available to its securityholders as
soon as practicable, but in any event not later than eighteen
months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earnings statement of
the Company and its subsidiaries (which need not be audited)
complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option
of the Company, Rule 158);
(e) During the period beginning from the date of the
Pricing Agreement for such Designated Securities and continuing to
and including the Time of Delivery for such Designated Securities,
not to offer, sell, contract to sell or otherwise dispose of any
debt securities of the Company which mature more than one year
after such Time of Delivery
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and which are substantially similar to such Designated Securities,
without the prior written consent of the Representatives; and
(f) If the Company elects to rely upon Rule 462(b), the
Company shall file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement, and the
Company shall at the time of filing either pay to the Commission
the filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to
Rule 111(b) under the Act.
6. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all
other expenses in connection with the preparation, printing and filing of
the Registration Statement, any Preliminary Prospectus and the Prospectus
and amendments and supplements thereto and the mailing and delivering of
copies thereof to the Underwriters and dealers; (ii) the cost of printing
or producing any Agreement among Underwriters, this Agreement, any Pricing
Agreement, any Indenture, any Blue Sky and Legal Investment Memoranda and
any other documents in connection with the offering, purchase, sale and
delivery of the Securities; (iii) all expenses in connection with the
qualification of the Securities for offering and sale under state
securities laws as provided in Section 5(b) hereof, including the
reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky and
Legal Investment Surveys; (iv) any fees charged by securities rating
services for rating the Securities; (v) any filing fees incident to, and
the fees and disbursements of counsel for the Underwriters in connection
with, any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Securities; (vi) the cost of
preparing the Securities; (vii) the fees and expenses of any Trustee and
any agent of any Trustee and the fees and disbursements of counsel for any
Trustee in connection with any 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 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 the fees of their counsel, transfer
taxes on resale of any of the Securities by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated
Securities under the Pricing Agreement relating to such Designated
Securities shall be subject, in the discretion of the Representatives, to
the condition that all representations and warranties and other statements
of the Company in or incorporated by reference in the Pricing Agreement
relating to such Designated Securities are, at and as of the Time of
Delivery for such Designated Securities, true and correct, the condition
that the Company shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; if the Company has elected to rely upon Rule
462(b), the Rule 462(b) Registration Statement shall have become effective
by 10:00 P.M., Washington, D.C. time, on the date of this Agreement; no
stop order suspending the effectiveness of the Registration Statement or
any part thereof shall have been issued and no
8
proceeding for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to the Representatives' reasonable
satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such written opinion or opinions, dated the Time of
Delivery for such Designated Securities, in form and substance satisfactory
to the Representatives, and such counsel shall have received such papers
and information as they may reasonably request to enable them to pass upon
such matters;
(c) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ (Illinois), counsel for
the Company, shall have furnished to the Representatives their written
opinion, dated the Time of Delivery for such Designated Securities, in form
and substance satisfactory to the Representatives, to the effect that:
(i) The Company has been duly incorporated and is
validly existing in good standing under the laws of the
State of Delaware;
(ii) This Agreement and the Pricing Agreement have
been duly authorized, executed and delivered by the
Company;
(iii) The Indenture has been duly authorized,
executed and delivered by the Company and is a valid and
binding agreement of the Company, enforceable against the
Company in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization,
moratorium, and other similar laws affecting creditors'
rights generally and by general principles of equity
(regardless of whether enforcement is sought in equity or
at law);
(iv) The Designated Securities have been duly
authorized and executed by the Company, and when issued and
delivered by the Company against payment therefor in
accordance with the terms of this Agreement and the Pricing
Agreement, the Designated Securities will constitute valid
and binding obligations of the Company entitled to the
benefits of the Indenture and enforceable against the
Company in accordance with their terms;
(v) The execution and delivery by the Company of
each of this Agreement, the Pricing Agreement, the
Designated Securities and the Indenture and the
consummation by the Company of the transactions
contemplated thereby, including the issuance and sale of
the Designated Securities, will not violate or conflict
with, or result in any contravention of, any applicable law
or applicable order;
(vi) No consent, approval, license, authorization or
validation of, or filing, qualification or registration
with, any court or governmental agency or body required to
be made or obtained by the Company pursuant to applicable
laws, other than any consent, approval, license,
authorization, validation, filing, qualification or
registration which may have become applicable as a result
of the involvement of any other party (other than the
Company) in the transactions contemplated by this Agreement
and the applicable Pricing Agreement, the Designated
Securities and the Indenture or because of such parties'
legal or regulatory status or because of any other facts
specifically pertaining to such parties, which has not been
obtained or taken and is not in full force and effect, is
required to authorize, or is required in connection with,
the execution or delivery of each of this Agreement or such
Pricing Agreement, the Designated Securities or the
Indenture by the Company or the consummation by the Company
of the transactions contemplated hereby or thereby, except
such consents, approvals, licenses, authorizations,
validations, or filings, qualifications or registrations
set forth on a schedule to such opinion;
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(vii) The statements in the Prospectus under the
captions "Underwriting" and "Plan of Distribution," insofar
as such statements purport to summarize certain provisions
of this Agreement and the Pricing Agreement, fairly
summarize such provisions in all material respects;
(viii)The statements in the Prospectus under the
captions "Description of Notes" and "Description of Debt
Securities," insofar as such statements purport to
summarize certain provisions of the documents referred to
therein, fairly summarize such provisions in all material
respects;
(ix) The Company is not and, solely after giving
effect to the offering and sale of the Designated
Securities and the application of the proceeds thereof as
described in the Prospectus, will not be subject to
registration and regulation as an "investment company", as
such term is defined in the Investment Company Act;
(x) The Registration Statement, at the time it
became effective, and the Prospectus, as of its date,
appeared on their face to be appropriately responsive in
all material respects to the requirements of the Securities
Act and the rules and regulations thereunder, except that
in each case such counsel need express no opinion as to the
financial statements and schedules and other financial data
included or incorporated by reference therein or excluded
therefrom, or the exhibits thereto, and, except to the
extent expressly stated in paragraphs (vii) and (viii) of
this Section 7(c), such counsel does not assume any
responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement
or the Prospectus. In addition, such counsel shall state
that it has been orally advised by the Commission that the
Indenture has been qualified under the Trust Indenture Act.
Further, such counsel shall state that it participated in
conferences with officers and other representatives of the
Company, counsel for the Company, representatives of the
independent accountants of the Company and the
Representatives and their counsel at which the contents of
the Registration Statement and the Prospectus and related
matters were discussed, although they did not participate
in the preparation of the documents incorporated by
reference in the Registration Statement and the Prospectus
but have, however, reviewed such documents and discussed
the business and affairs of the Company with officers and
other representatives of the Company. Although such counsel
does not need to pass upon, and does not need to assume any
responsibility for, the accuracy, completeness or fairness
of the statements contained in the Registration Statement
or the Prospectus and need not make any independent check
or verification thereof (except to the limited extent
referred to in the opinions in subsection (vii) and (viii)
of this Section 7(c)), on the basis of the foregoing, no
facts have come to their attention that have led them to
believe that the Registration Statement, at the time it
became effective, contained an untrue statement of a
material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, as of its
date and as of the Time of Delivery, contained or contains
an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading (except with respect
to the financial statements, schedules and
10
other financial data included or incorporated by reference
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);
(d) ▇▇▇▇▇ ▇▇▇▇▇▇▇, Senior Vice President and General Counsel of
the Company, shall have furnished to the Representatives his written
opinion, dated the Time of Delivery for such Designated Securities, in form
and substance satisfactory to the Representatives, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under
the laws of the State of Delaware and has the power and
authority to own its properties and conduct its business as
described in the Prospectus;
(ii) The Company has an authorized capitalization as
set forth in the Prospectus, and all of the issued and
outstanding shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid
and non-assessable;
(iii) The Company is qualified to do business and in
good standing as a foreign corporation in each jurisdiction
in which its ownership or lease of property or the conduct
of its business requires such qualification, except where
the failure to so qualify or have such power would not have
a Material Adverse Effect;
(iv) Each Significant Subsidiary of the Company has
been duly incorporated and is validly existing as a
corporation in good standing under the laws of its
jurisdiction of incorporation; and all of the issued shares
of capital stock of each such subsidiary are owned directly
or indirectly by the Company;
(v) The issue and sale of the Designated Securities,
the compliance by the Company with all of the provisions of
the Designated Securities, the Indenture, this Agreement
and the Pricing Agreement with respect to the Designated
Securities and the consummation by the Company of the
transactions herein and therein contemplated will not (i)
conflict with the Company's Certificate of Incorporation or
By-laws or (ii) result in a breach of any terms or
provisions of, or constitute a default under, any material
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to me to which the Company is
a party, by which the Company is bound or to which any
property or assets of the Company is subject;
(vi) Neither the Company nor any of its Significant
Subsidiaries is (i) in violation of its By-laws or
Certificate of Incorporation or (ii) in default in the
performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument
to which it is a party or by which it or any of its
properties may be bound, except in the case of clause (ii)
for such defaults that could not reasonably be expected to
have a Material Adverse Effect;
(vii) To such counsel's knowledge and other than as
set forth in the Prospectus and the documents incorporated
by reference therein, there are no legal or governmental
proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject that
would have a Material Adverse Effect;
11
(viii)Each of the documents incorporated by
reference into the Prospectus, when it was filed, complied
as to form in all material respects with the requirements
of the Exchange Act and the applicable rules and
regulations of the Commission thereunder and there are no
material exhibits required to be filed to the filings
incorporated by reference in the Prospectus that have not
been filed therewith, except that such counsel does not
need to express any opinion as to the financial statements
and related notes and schedules and other financial data
included therein or omitted therefrom or the exhibits
thereto;
(ix) Such counsel shall state that it has
participated in conferences with other officers and
representatives of the Company, counsel for the Company,
representatives of the independent accountants of the
Company and the Representatives and their counsel at which
the contents of the Registration Statement and the
Prospectus and related matters were discussed. Although
such counsel does not need to pass upon, and does not
assume any responsibility for, the accuracy, completeness
or fairness of the statements contained in the Registration
Statement or the Prospectus, on the basis of the foregoing,
no facts have come to such counsel's attention that have
led it to believe that the Registration Statement, at the
time it became effective, contained an untrue statement of
a material fact or omitted to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus,
as of its date and as of the Time of Delivery, contained or
contains an untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to
make the statements therein, in light of the circumstances
under which they were made, not misleading, except that
such counsel need express no opinion or belief with respect
to the financial statements, schedules and other financial
data included or incorporated by reference therein or
excluded therefrom or the exhibits to the Registration
Statement including the Form T-1.
(e) On the date of the Pricing Agreement for such Designated
Securities at a time prior to the execution of the Pricing Agreement with
respect to such Designated Securities and at the Time of Delivery for such
Designated Securities, KPMG LLP, who have certified the financial
statements of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement shall have furnished to the
Representatives a letter, dated the date of the applicable Pricing
Agreement, and a letter dated such Time of Delivery, respectively; and
Deloitte & Touche LLP shall have furnished to the Representatives a letter
dated the date of the applicable Pricing Agreement, and a letter dated such
Time of Delivery, and with respect to such letter dated the date of the
applicable Pricing Agreement, as to such other matters as the
Representatives may reasonably request and 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 financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented prior to the date of the Pricing Agreement relating to the
Designated Securities any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus as amended or
supplemented prior to the date of the Pricing Agreement relating to the
Designated Securities, and (ii) since the respective dates as of which
information is given in
12
the Prospectus as amended or supplemented prior to the date of the Pricing
Agreement relating to the Designated Securities there shall not have been any
change in the capital stock (other than issuances of Common Stock of the
Company in connection with the Company's existing stock option and similar
stock incentive plans) or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or contemplated
in the Prospectus as amended prior to the date of the Pricing Agreement
relating to the Designated Securities, the effect of which, in any such case
described in clause (i) or (ii), is in the judgment of the Representatives so
material and adverse to the Company and its subsidiaries, taken as a whole,
as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Designated Securities on the terms and in the
manner contemplated in the Prospectus as first amended or supplemented
relating to the Designated Securities;
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities or preferred stock or the Company's
financial strength or claims paying ability by any "nationally recognized
statistical rating organization", as that term is defined by the Commission
for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization
shall have publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any of the Company's
debt securities or preferred stock or the Company's financial strength or
claims paying ability;
(h) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally
on the New York Stock Exchange; (ii) a suspension or material limitation in
trading in the Company's securities on the New York Stock Exchange; (iii) a
general moratorium on commercial banking activities declared by either
Federal or New York, California, Arizona, Colorado, Oregon or Washington
State authorities or a material disruption in commercial banking or
securities settlement or clearance services in the United States; (iv) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war or (v) the
occurrence of any other calamity or crisis or any change in financial,
political or economic conditions in the United States or elsewhere, if the
effect of any such event specified in clause (iv) or (v) in the judgment of
the Representatives makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Designated Securities on the
terms and in the manner contemplated in the Prospectus as first amended or
supplemented relating to the Designated Securities;
(i) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the business
day next succeeding the date of this Agreement; and
(j) The Company shall have furnished or caused to be furnished to
the Representatives at the Time of Delivery for the Designated Securities a
certificate or certificates of officers of the Company satisfactory to the
Representatives as to the accuracy of the representations and warranties of
the Company herein at and as of such Time of Delivery, as to the
performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set forth
in subsections (a) and (f) of this Section and as to such other matters as
the Representatives may reasonably request.
13
8. (a) 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 Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating 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 Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by any Underwriter of Designated Securities
through the Representatives expressly for use in the Prospectus as amended
or supplemented relating to such Securities.
(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 Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the 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
14
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. 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 of the Designated Securities on the other
from the offering of the Designated Securities to which such loss, claim,
damage or liability (or action in respect thereof) relates. If, however,
the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party
shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and the
Underwriters of the Designated Securities on the other in connection with
the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and such Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from such offering
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by such Underwriters. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or such Underwriters on
the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed
to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the
15
amount by which the total price at which the applicable Designated
Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters of
Designated Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to
such Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section 8 shall be in addition to any
liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of
the Company and to each person, if any, who controls the Company within the
meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Designated Securities which it has agreed to purchase under
the Pricing Agreement relating to such Designated Securities, the
Representatives may in their discretion arrange for themselves or another
party or other parties to purchase such Designated Securities on the terms
contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such
Designated Securities, then the Company shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties satisfactory to the Representatives to purchase such Designated
Securities on such terms. In the event that, within the respective
prescribed period, the Representatives notify the Company that they have so
arranged for the purchase of such Designated Securities, or the Company
notifies the Representatives that it has so arranged for the purchase of
such Designated Securities, the Representatives or the Company shall have
the right to postpone the Time of Delivery for such Designated Securities
for a period of not more than seven days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement or the
Prospectus as amended or supplemented, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments or
supplements to the Registration Statement or the Prospectus which in the
opinion of the Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such
Designated Securities.
(b) If, after giving effect to any arrangements for the purchase
of the Designated Securities of a defaulting Underwriter or Underwriters by
the Representatives and the Company as provided in subsection (a) above,
the aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount
of the Designated Securities, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the principal amount of
Designated Securities which such Underwriter agreed to purchase under the
Pricing Agreement relating to such Designated Securities and, in addition,
to require each non-defaulting Underwriter to purchase its pro rata share
(based on the principal amount of Designated Securities which such
Underwriter agreed to purchase under such Pricing Agreement) of the
Designated Securities of such defaulting
16
Underwriter or Underwriters for which such arrangements have not been made;
but nothing herein shall relieve a defaulting Underwriter from liability for
its default.
(c) If, after giving effect to any arrangements for the purchase
of the Designated Securities of a defaulting Underwriter or Underwriters by
the Representatives and the Company as provided in subsection (a) above,
the aggregate principal amount of Designated Securities which remains
unpurchased exceeds one-eleventh of the aggregate principal amount of the
Designated Securities, as referred to in subsection (b) above, or if the
Company shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Designated Securities of a
defaulting Underwriter or Underwriters, then the Pricing Agreement relating
to such Designated Securities shall thereupon terminate, without liability
on the part of any non-defaulting Underwriter or the Company, except for
the expenses to be borne by the Company and the Underwriters as provided in
Section 6 hereof and the indemnity and contribution agreements in Section 8
hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several
Underwriters, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall remain in full force
and effect, regardless of any investigation (or any statement as to the
results thereof) made by or on behalf of any Underwriter or any controlling
person of any Underwriter, or the Company, or any officer or director or
controlling person of the Company, and shall survive delivery of and
payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to
Section 9 hereof, the Company shall not then be under any liability to any
Underwriter with respect to the Designated Securities covered by such
Pricing Agreement except as provided in Sections 6 and 8 hereof; but, if
for any other reason Designated Securities are not delivered by or on
behalf of the Company as provided herein, the Company will reimburse the
Underwriters through the Representatives for all out-of-pocket expenses
approved in writing by the Representatives, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of such Designated
Securities, but the Company shall then be under no further liability to any
Underwriter with respect to such Designated Securities except as provided
in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Securities shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon
any statement, request, notice or agreement on behalf of any Underwriter
made or given by such Representatives jointly or by such of the
Representatives, if any, as may be designated for such purpose in the
Pricing Agreement.
All statements, requests, notices and agreements hereunder shall
be in writing, and if to the Underwriters shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Representatives
as set forth in the Pricing Agreement; and if to the Company shall be
delivered or sent by mail, telex or facsimile transmission to the address
of the Company set forth in the Registration Statement: Attention:
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Questionnaire,
which address will be supplied to the
17
Company by the Representatives upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding
upon, and inure solely to the benefit of, the Underwriters, the Company
and, to the extent provided in Sections 8 and 10 hereof, the officers and
directors of the Company and each person who controls the Company or any
Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement or any such Pricing Agreement. No
purchaser of any of the Securities from any Underwriter shall be deemed a
successor or assign by reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As
used herein, "business day" shall mean any day when the Commission's office
in Washington, D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
16. This Agreement and each Pricing Agreement may be executed by
any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same
instrument.
17. The Company is authorized, subject to applicable law, to
disclose any and all aspects of this potential transaction that are
necessary to support any U.S. federal income tax benefits expected to be
claimed with respect to such transaction, without the Underwriters imposing
any limitation of any kind.
Very truly yours,
Unitrin, Inc.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
and Chief Financial Officer
Accepted as of the date hereof:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
Banc One Capital Markets, Inc.
Wachovia Securities, Inc.
BNY Capital Markets, Inc.
Tokyo-Mitsubishi International plc
▇▇▇▇▇ Fargo Brokerage Services, LLC
By: /s/▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
----------------------------
(▇▇▇▇▇▇▇, Sachs & Co.)
On behalf of each of the Underwriters
18