250,000,000 5.375% Notes due 2017 $250,000,000 6.150% Notes due 2036 Underwriting Agreement March 12, 2007
$250,000,000
5.375% Notes due 2017
$250,000,000
6.150% Notes due 2036
March
12,
2007
Banc
of
America Securities LLC
▇
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇
New
York,
NY 10019
Deutsche
Bank Securities Inc.
▇▇
▇▇▇▇
▇▇▇▇▇▇
New
York,
NY 10005
▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co.
▇▇
▇▇▇▇▇
▇▇▇▇▇▇
New
York,
NY 10004
Citigroup
Global Markets Inc.
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
Floor
New
York,
NY 10013
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 an Indenture dated as of August 16, 2006 (the “Base
Indenture”)
between the Company and U.S. Bank National Association, as trustee (the
“Trustee”)
and
Supplemental Indenture No. 1 to the Base Indenture entered into and Supplemental
Indenture No. 2 to be entered into between the Company and the Trustee (the
“Supplemental
Indentures,”
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
1
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
March 12, 2007) 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
6(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 reliance upon and in conformity with information furnished
in
writing
2
to
the
Company by an Underwriter through the Representatives or ▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇ on their behalf expressly for use therein;
(c) For
the
purposes of this Agreement, the “Applicable
Time”
is
5:10
pm (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 ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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 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 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
3
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 ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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 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”);
4
(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 Indentures have been duly executed and delivered by the Company
in
accordance with their 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 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
5
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, if determined
adversely to the Company or any of its subsidiaries, would individually or
in
the aggregate have a Material Adverse Effect, or would materially and adversely
affect the ability of the Company to perform its obligations under the Indenture
or this Agreement or which are otherwise 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;
(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, 2006, 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
quarterly 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
6
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
(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.
| 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 March 15, 2007 with
respect to the 5.375% Notes due 2017 and November 10, 2006 with respect to
the
6.150% Notes due 2036 to the Closing Date.
(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
7
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 March 15, 2007 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 ▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇▇▇▇, 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 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.”
8
(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 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;
(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
9
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 ▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇, 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 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
10
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 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
11
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 Notes 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 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
12
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 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) ▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, shall have furnished to you
such opinion or opinions, dated the Closing Date, 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 pass upon
such
matters.
(d) ▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇, Executive Vice President and General Counsel of the Company, or ▇▇▇▇▇▇
▇▇▇▇▇, Corporate Secretary, Vice President and Chief 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) Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, 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.
13
(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
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
14
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 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
15
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, 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
16
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 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 Notes of
the
defaulting Underwriter as provided in this Section 9, (i) the Company shall
have
the
17
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 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.
18
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:
Banc
of
America Securities LLC, ▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇,
▇▇▇-040-27-03, New York, NY 10019, Attention: High Grade Transactional
Management/Legal,
Facsimile
No. ▇▇▇-▇▇▇-▇▇▇▇,
Deutsche
Bank Securities Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Debt Capital Markets, Facsimile No. (▇▇▇)
▇▇▇-▇▇▇▇,
▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co., ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Registration Department,
Citigroup
Global Markets Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
General Counsel,
Facsimile
No. (▇▇▇)
▇▇▇-▇▇▇▇, as the Representatives;
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
19
connection
therewith and with the process leading to such transaction each Underwriter
is
acting 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]
20
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:
Senior Vice President and Treasurer
Accepted
as of the date hereof:
BANC
OF
AMERICA SECURITIES LLC
DEUTSCHE
BANK SECURITIES INC.
▇▇▇▇▇▇▇,
▇▇▇▇▇ & CO.
CITIGROUP
GLOBAL MARKETS INC.
as
the
Representatives of the several Underwriters
By: BANC
OF
AMERICA SECURITIES LLC
By:
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Vice President
By: DEUTSCHE
BANK SECURITIES INC.
By:
/s/
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title:
Managing Director
By:
/s/
▇▇▇▇▇ ▇. ▇. ▇▇▇▇
Name:
▇▇▇▇▇ ▇.▇. ▇▇▇▇
Title:
Managing Director/Debt Syndicate
By: ▇▇▇▇▇▇▇,
▇▇▇▇▇ & CO.
By:
/s/
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
(▇▇▇▇▇▇▇,
▇▇▇▇▇ & CO.)
CITIGROUP
GLOBAL MARKETS INC.
By:
/s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
Director