Exhibit No. 1
$900,000,000
THE ALLSTATE CORPORATION
$900,000,000 7 7/8% Senior Notes Due 2005
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UNDERWRITING AGREEMENT
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April 26, 2000
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April 26, 2000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation
▇▇▇▇▇▇ Brothers Inc.
Credit Suisse First Boston Corporation
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Sun Trust Equitable Securities
Warburg Dillon Read LLC
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The Allstate Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell to the several Underwriters named in Schedule I
hereto (the "Underwriters"), for whom ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation ▇▇▇▇▇▇ Brothers Inc.,
Credit Suisse First Boston Corporation, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇.▇. ▇▇▇▇▇▇
Securities Inc., Sun Trust Equitable Securities and Warburg Dillon Read LLC
are acting as Representatives (the "Representatives"), $900,000,000 principal
amount of its 7 7/8% Senior Notes Due 2005 registered under the Registration
Statement referred to in Section 1(a) below (the "Securities"), to be issued
pursuant to the provisions of an Indenture, dated as of December 16, 1997, as
amended by the Third Supplemental Indenture, dated as of July 23, 1999, and
as supplemented by the Fifth Supplemental Indenture, dated as of May 1, 2000
(as so amended and supplemented, the "Indenture"), between the Company and
State Street Bank and Trust Company, as Trustee (the "Trustee").
1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to, and agrees with, each of the Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-61817) under the Securities Act of 1933, as amended (the "Act"), which
has become effective, for the registration under the Act of the Securities.
The Company proposes to file with the Commission pursuant to Rule 424 under
the Act a supplement or supplements to the form of prospectus included in
such registration statement relating to the Securities and the plan of
distribution thereof. Such registration statement, including the exhibits
thereto, as amended at the date of this Agreement, is hereinafter called the
"Registration Statement"; such prospectus in the form in which it appears in
the Registration Statement is hereinafter called the "Basic Prospectus"; and
such supplemented form of prospectus, in the form in which it shall be filed
with the Commission pursuant to Rule 424 (including the Basic Prospectus as
so supplemented) is hereinafter called the "Final Prospectus." Any
preliminary form of the Final Prospectus which has heretofore been filed
pursuant to Rule 424 is hereinafter called the "Preliminary Final
Prospectus." Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the Securities
Exchange Act of 1934 (the "Exchange Act") on or before the date of this
Agreement, or the issue date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be; and any reference
herein to the terms "amend," "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be
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deemed to refer to and include the filing of any document under the Exchange
Act after the date of this Agreement, or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the
case may be, deemed to be incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is first filed
or transmitted for filing pursuant to Rule 424 under the Act, when, prior to
the Closing Date (as hereinafter defined), any amendment to the Registration
Statement becomes effective (including the filing of any document
incorporated by reference in the Registration Statement), when any supplement
to the Final Prospectus is filed with the Commission and at the Closing Date,
(i) the Registration Statement, as amended as of any such time, and the Final
Prospectus, as amended or supplemented as of any such time, and, the
Indenture will comply in all material respects with the applicable
requirements of the Act, the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the Exchange Act and the respective rules
thereunder and (ii) neither the Registration Statement, as amended as of any
such time, nor the Final Prospectus, as amended or supplemented as of such
time, will contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to make
the statements therein not misleading; provided, however, that the Company
makes no representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of Eligibility
and Qualification (Form T-1) under the Trust Indenture Act of the Trustees
(the "Form T-1") or (ii) the information contained in or omitted from the
Registration Statement or the Final Prospectus or any amendment thereof or
supplement thereto in reliance upon and in conformity with information
relating to such Underwriter or the underwriting arrangements furnished in
writing to the Company by any Underwriter specifically for use in the
Registration Statement and the Final Prospectus.
(c) Each document incorporated by reference in the Registration
Statement and the Final Prospectus will comply in all material respects, as
amended at the time the Registration Statement becomes effective, with the
Exchange Act.
(d) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and
to conduct its business as described in the Final Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
(e) Each subsidiary of the Company listed in Schedule III hereto
(each, a "Principal Subsidiary") has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the jurisdiction
of its incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Final Prospectus and
is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing
of property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(f) This Agreement has been duly authorized, executed and delivered by
the Company.
(g) The Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Company and
is a valid and binding agreement of the Company, enforceable in accordance
with its terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally
and (ii) rights of acceleration and the availability of equitable remedies
may be limited by equitable principles of general applicability.
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(h) The Securities have been duly authorized and, when the
Securities are issued and delivered pursuant to this Agreement with respect
to such Securities, such Securities will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Company entitled to the benefits provided by the
Indenture.
(i) The issuance and sale of the Securities and compliance by the
Company with all of the provisions of the Securities, the Indenture and this
Agreement will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument for
borrowed money to which the Company or any Principal Subsidiary is a party or
by which the Company or any of its Principal Subsidiaries is bound or to
which any of the property or assets of the Company or any of its Principal
Subsidiaries is subject, nor will such action result in any violation of the
provisions of the Certificate of Incorporation or By-laws of the Company or
any of its Principal Subsidiaries or any statute or any order, rule or
regulation of any court or insurance regulatory authority or other
governmental agency or body having jurisdiction over the Company or any of
its Principal Subsidiaries or any of their properties, in each case other
than such breaches, conflicts, violations or defaults which, individually or
in the aggregate, would not have a material adverse effect on the Company and
its subsidiaries considered as a whole, and no authorization, approval,
order, consent, registration or qualification of or with any such court or
insurance regulatory authority or other governmental agency or body is
required for the issue or sale of the Securities, except (i) the registration
under the Act of the Securities; and (ii) such authorizations, approvals,
orders, consents, registrations or qualifications as may be required under
the Trust Indenture Act or state or foreign securities or Blue Sky laws in
connection with the purchase and distribution of the Securities by the
Underwriters, in each case other than such authorizations, approvals, orders,
consents, registrations or qualifications which (individually or in the
aggregate) the failure to make, obtain or comply with would not have a
material adverse effect on the Company and its subsidiaries, taken as a whole.
(j) Except as described in or contemplated by the Registration
Statement and the Final Prospectus, there has not been any material adverse
change in, or any adverse development which materially affects, the business,
properties, financial condition or results of operations of the Company and
its subsidiaries taken as a whole from the dates as of which information is
given in the Registration Statement and the Final Prospectus; and, since the
respective dates as of which information is given in the Registration
Statement and the Final Prospectus, there has not been any material increase
in the consolidated capital stock (other than issuances of capital stock upon
exercise of options and stock appreciation rights, upon earn-outs of
performance shares and upon conversions of convertible securities, in each
case which were outstanding on the date of the latest balance sheet
incorporated by reference in the Final Prospectus) or any material increase
in the consolidated long-term debt of the Company and its subsidiaries or any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the 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 Final Prospectus.
(k) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended.
2. AGREEMENT TO SELL AND PURCHASE. The Company hereby agrees to sell
to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the
conditions hereinafter stated, agree, severally and not jointly, to purchase
from the Company the respective principal amounts of the Securities set forth
in Schedule I hereto opposite their names at 99.027% of the principal amount
-- the purchase price -- plus accrued interest, if any, from April 26, 2000
to the date of payment and delivery.
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3. TERMS OF PUBLIC OFFERING. The Company is advised by you that the
Underwriters propose to make a public offering of their respective portions
of the Securities as soon after the Registration Statement and this Agreement
have become effective as in your judgment is advisable. The Company is
further advised by you that the Securities are to be offered to the public
initially at 99.627% of the principal amount (the "Public Offering Price")
plus accrued interest, if any, from April 26, 2000 to the date of payment and
delivery and to certain dealers selected by you at a price that represents a
concession not in excess of .350% of the principal amount under the Public
Offering Price, and that any Underwriter may allow, and such dealers may
re-allow, a concession, not in excess of .250% of the principal amount, to
any Underwriter or to certain other dealers.
4. PAYMENT AND DELIVERY OF THE SECURITIES. Payment for the
Securities shall be made by wire transfer payable to the order of the Company
in immediately available funds at the office of LeBoeuf, Lamb, ▇▇▇▇▇▇ &
▇▇▇▇▇▇, L.L.P., ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 10:00
A.M., local time, on May 1, 2000, or at such other time on the same or such
other date, not later than May 1, 2000, as shall be designated in writing by
you. The time and date of such payment are hereinafter referred to as the
"Time of Delivery" for such Securities.
Payment for the Securities shall be made against delivery to you or
a depositary on your behalf for the respective accounts of the several
Underwriters of the Securities registered in such names and in such
denominations as you shall request in writing not later than two full
business days prior to the date of delivery, with any transfer taxes payable
in connection with the transfer of the Securities to the Underwriters duly
paid.
5. COMPANY COVENANTS. The Company agrees with each of the Underwriters
of the Securities:
(a) (i) To prepare the Final Prospectus as amended and supplemented
in relation to the Securities in a form approved by the Representatives and
to timely file such Final Prospectus pursuant to Rule 424(b) under the Act;
(ii) to make no further amendment or any supplement to the Registration
Statement or Final Prospectus as amended or supplemented after the date
hereof and prior to the Time of Delivery for the Securities unless the
Representatives shall have had a reasonable opportunity to review and comment
upon any such amendment or supplement prior to any filing thereof; (iii) to
advise the Representatives promptly of any such amendment or supplement after
such Time of Delivery and furnish the Representatives with copies thereof;
(iv) to file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required in connection with the offering or sale
of the Securities, and during such same period to advise the Representatives,
promptly after it receives notice thereof, of (I) the time when any amendment
to any Registration Statement has been filed or becomes effective or any
supplement to the Final Prospectus or any amended Final Prospectus has been
filed with the Commission, (II) the issuance by the Commission of any stop
order or of any order preventing or suspending the use of the Final
Prospectus, (III) the suspension of the qualification of the Securities for
offering or sale in any jurisdiction or of the initiation or threatening of
any proceeding for any such purpose, or (IV) any request by the Commission
for the amending or supplementing of any Registration Statement or the Final
Prospectus or for additional information; and, in the event of the issuance
of any such stop order or of any such order preventing or suspending the use
of the Final Prospectus or suspending any such qualification, to use promptly
its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Securities for offering
and sale under the securities and insurance securities laws of such
jurisdictions as the Representatives may request and to comply with such laws
so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of
the Securities, provided that in connection therewith the Company shall not
be required to qualify as a foreign corporation or to file a general consent
to service of process in any jurisdiction;
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(c) To furnish the Underwriters with copies of the Final Prospectus
as amended or supplemented in such quantities as the Representatives may from
time to time reasonably request, and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Securities, and if at such time any event shall have occurred as a result of
which the Final Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made when such Final Prospectus is
delivered, not misleading, or, if for any other reason it shall be necessary
during such period to amend or supplement the Final Prospectus or to file
under the Exchange Act any document incorporated by reference in the Final
Prospectus in order to comply with the Act, the Exchange Act or the Trust
Indenture Act, to notify the Representatives and upon their request to
prepare and furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Representatives may from time to time
reasonably request of an amended Final Prospectus or a supplement to the
Final Prospectus or a document incorporated by reference in the Final
Prospectus which will correct such statement or omission or effect such
compliance;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement, an earnings statement of the
Company and its subsidiaries (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations thereunder; and
(e) During the period beginning from the date hereof and continuing
to and including the latter of (i) the termination of trading restrictions
for the Securities, as notified to the Company by the Representatives or
their counsel and (ii) the Time of Delivery for the Securities, not to offer,
sell, contract to sell or otherwise dispose of any securities of the Company
which are substantially similar to the Securities, without the prior written
consent of the Representatives, which consent shall not be unreasonably
withheld.
6. FEES AND EXPENSES. The Company covenants and agrees with the
several Underwriters that the Company will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Company's counsel
and accountants in connection with the registration of the Securities under
the Act and all other expenses in connection with the preparation, printing
and filing of the Registration Statement, Basic Prospectus, any Preliminary
Final Prospectus and the Final Prospectus and amendments and supplements
thereto and the mailing and delivering of copies thereof to the Underwriters
and dealers; (ii) the cost of printing or producing this Agreement, the
Indenture, any Blue Sky Survey and any Legal Investment Memoranda in
connection with the offering, purchase, sale and delivery of the Securities;
(iii) all reasonable expenses in connection with the qualification of the
Securities for offering and sale under state securities and insurance
securities laws as provided in Section 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) the filing fees incident to securing any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale of
the Securities; (v) any fees charged by securities rating services for rating
the Securities; (vi) the cost of preparing the Securities; (vii) the fees and
expenses of any Trustee, Paying Agent or Transfer Agent and the fees and
disbursements of counsel for any such Trustee, Paying Agent or Transfer Agent
in connection with the Indenture and the Securities; and (viii) all other
costs and expenses incident to the performance of its obligations hereunder
which are not otherwise specifically provided in this Section. It is
understood, however, that, except as provided in this Section, Section 8 and
Section 9 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. CONDITIONS TO UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters of the Securities shall be subject to the condition that all
representations and warranties of the Company herein are, at and as of the
Time of Delivery for the Securities, true and correct, the condition that the
Company shall have performed all of its obligations hereunder to be performed
at or before such Time of Delivery, and the following additional conditions:
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(a) The Final Prospectus as amended or supplemented in relation to
the Securities shall have been filed with the Commission pursuant to Rule
424(b) within the applicable time period prescribed for such filing by the
rules and regulations under the Act and in accordance with Section 5(a)
hereof; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the Commission; and
all requests for additional information on the part of the Commission shall
have been complied with to the Representatives' reasonable satisfaction;
(b) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Company, shall have furnished
to you their written opinion, dated the Time of Delivery for the Securities,
in form and substance reasonably satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own its properties and
conduct its business as described in the Final Prospectus as amended and
supplemented;
(ii) This Agreement has been duly authorized, executed and
delivered by the Company;
(iii) The Securities have been duly authorized, and
(assuming their due authentication by the Trustee) have been duly executed,
issued and delivered and constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the Indenture and the
Securities and the Indenture conform in all material respects to the
descriptions thereof in the Final Prospectus as amended or supplemented;
(iv) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company, and constitutes a valid and legally binding instrument, enforceable
in accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating
to or affecting creditors' rights and to general equity principles;
(v) The Registration Statement and the Final Prospectus as
amended or supplemented and any further amendments thereto made by the
Company prior to such Time of Delivery for the Securities (in each case other
than with respect to the financial statements, financial and accounting data
and related schedules incorporated by reference or included therein or
excluded therefrom, or the exhibits to the Registration Statement including
the Form T-1, as to which such counsel need express no opinion or belief),
appear on their face to be appropriately responsive in all material respects
to the requirements of the Act and the Trust Indenture Act and the applicable
rules and regulations of the Commission thereunder; provided that, such
counsel shall not be deemed to be passing upon and shall not be required to
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and Final Prospectus;
(vi) As such counsel, such counsel reviewed the
Registration Statement and Final Prospectus as amended or supplemented,
participated in discussions with representatives of the Underwriters and of
the Company and its accountants at which contents of the Registration
Statement and Final Prospectus as amended or supplemented and related matters
were discussed; on the basis of the information that such counsel gained in
the course of the performance of their services referred to above, although
such counsel shall not be deemed to be passing upon and shall not assume any
responsibility for, the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Final Prospectuses and not be
required to have made an independent check or verification thereof (except as
described in paragraph (ii) hereof), on the basis of the foregoing, no facts
have come to the attention of such counsel in the course of such review which
have led such counsel to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made by the Company
prior to the Time of Delivery (other than the financial statements and the
financial and accounting data and related schedules incorporated by reference
or included therein or excluded therefrom, or the exhibits to the
Registration Statement including the Form T-1, as to which such counsel need
express no opinion) contained an untrue statement of a
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material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that,
as of its date or the Time of Delivery, the Final Prospectus as amended or
supplemented or any further amendment or supplement thereto made by the
Company prior to the Time of Delivery (other than the financial statements
and financial and accounting data and related schedules incorporated by
reference or included therein or excluded therefrom, or the exhibits to the
Registration Statement including the Form T-1, as to which such counsel need
express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made not misleading; and
(vii) The Company is not an "investment company" or an
entity "controlled" by an "investment company," as such terms are defined in
the Investment Company Act of 1940, as amended.
(c) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President and General Counsel of the
Company, shall have furnished to you his written opinion, dated the Time of
Delivery, in form and substance reasonably satisfactory to you, to the effect
that:
(i) Each of Allstate Insurance Company ("AIC") and Allstate
Life Insurance Company ("▇▇▇▇") has been duly incorporated and is validly
existing as an insurance corporation under the laws of the State of Illinois,
with corporate power and authority to own its properties and conduct its
business as described in the Final Prospectus as amended or supplemented;
(ii) All of the issued shares of capital stock of each
Principal Subsidiary have been duly and validly authorized and issued, are
fully paid and nonassessable, and are owned of record directly or indirectly
by the Company, AIC or ▇▇▇▇, as the case may be (such counsel being entitled
to rely in respect of the opinion in this clause (ii) upon opinions of local
or in-house counsel and in respect of matters of fact upon certificates of
officers of the Company or its subsidiaries, provided that such counsel shall
state that he believes that both you and he are justified in relying upon
such opinions and certificates);
(iii) Each Principal Subsidiary is duly licensed or
authorized as an insurer or reinsurer in each other jurisdiction where it is
required to be so licensed, except where the failure to be so licensed or
authorized in any such jurisdiction does not have a material adverse effect
on the financial condition, business or properties of the Company and its
subsidiaries considered as a whole; the Company and each Principal Subsidiary
have made all required filings under applicable insurance holding company
statutes, and each is duly licensed or authorized as an insurance holding
company in each jurisdiction where it is required to be so licensed, except
where the failure to have made such filings or to be so licensed or
authorized in any such jurisdiction does not have a material adverse effect
on the financial condition, business or properties of the Company and its
subsidiaries considered as a whole; the Company and each Principal Subsidiary
have all necessary authorizations, approvals, orders, consents, registrations
or qualifications of and from all insurance regulatory authorities to conduct
their respective businesses as described in the Final Prospectus as amended
or supplemented, except where the failure to have such authorizations,
approvals, orders, consents, registrations or qualifications does not have a
material adverse effect on the financial condition, business or properties of
the Company and its subsidiaries considered as a whole; and none of the
Company or any Principal Subsidiary has received any notification from any
insurance regulatory authority to the effect that any additional
authorization, approval, order, consent, registration or qualification from
such insurance regulatory authority is needed to be obtained by any of the
Company or any Principal Subsidiary in any case where it could be reasonably
expected that (x) the Company or any Principal Subsidiary would in fact be
required either to obtain any such additional authorization, approval, order,
consent, registration or qualification or cease or otherwise limit writing
certain business and (y) obtaining such authorization, approval, order,
consent, license, certificate, permit, registration or qualification or
limiting such business would have a material adverse effect on the business,
financial position or results of operations of the Company and its
subsidiaries, considered as a whole (such counsel being entitled to rely in
respect of the opinion in this clause upon opinions of local or
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in-house counsel and in respect of matters of fact upon certificates of
officers of the Company or its subsidiaries, provided that such counsel shall
state that he believes that both you and he are justified in relying upon
such opinions and certificates);
(iv) To the best of such counsel's knowledge, each
Principal Subsidiary is in compliance with the requirements of the insurance
laws and regulations of its state of incorporation and the insurance laws and
regulations of other jurisdictions which are applicable to such Principal
Subsidiary, and has filed all notices, reports, documents or other
information required to be filed thereunder, or is subject to no material
liability or disability by reason of the failure to so comply or file (such
counsel being entitled to rely in respect of this clause upon opinions of
local or in-house counsel and in respect of matters of fact upon certificates
of officers of the Company or its subsidiaries, provided that such counsel
shall state that he believes that both you and he are justified in relying
upon such opinions and certificates);
(v) To the best of such counsel's knowledge and other than
as set forth in the Final Prospectus as amended or supplemented, there are no
legal or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or to which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely to the Company or
any of its subsidiaries, individually or in the aggregate, could reasonably
be expected to have a material adverse effect on the financial condition,
business or properties of the Company and its subsidiaries considered as a
whole; and, to the best of such counsel's knowledge, no such proceedings are
threatened;
(vi) The issuance and sale of the Securities and the
performance by the Company of its obligations under the Indenture, the
Securities or this Agreement and the consummation by the Company of the
transactions contemplated therein and herein will not conflict with or result
in a breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument relating to the Company or any of its
subsidiaries, as such agreements or instruments have been amended (which
indentures, mortgages, deeds of trust, loan agreements or other agreements or
instruments may be specified by such counsel on a schedule attached to his
opinion); nor will any such action result in any violation of the provisions
of the Certificate or the By-Laws or any applicable United States law or
statute or any order, rule or regulation of any United States court or
governmental agency or body having jurisdiction over the Company, its
subsidiaries or any of their respective properties, provided, that the
foregoing opinion is limited to those statutes, laws, rules and regulations
of the United States of America, the State of Delaware and the State of
Illinois, in each case, which, in the opinion of such counsel, are normally
applicable to transactions of the type contemplated by this Agreement, and
provided further, that no opinion need be given with respect to (A) the Act,
the Exchange Act, the Trust Indenture Act, the rules and regulations issued
pursuant to each such act, any order, rule or regulation made or established
by any insurance official or regulatory authority or the National Association
of Securities Dealers, Inc., or state securities or Blue Sky laws in
connection with the purchase and distribution of the Securities by the
Underwriters or (B) conflicts, breaches or violations which individually and
in the aggregate both would not have a material adverse effect on the
financial condition, business or operations of the Company and its
subsidiaries taken as a whole and would not have a material adverse effect on
the sale or ownership of the Securities (such counsel being entitled to rely
in respect of the opinion in this clause (vi) upon opinions of local or
in-house counsel and in respect of matters of fact upon certificates of
officers of the Company or its subsidiaries, provided that such counsel shall
state that he believes that both you and he are justified in relying upon
such opinions and certificates);
(vii) No consent, approval, authorization, order,
registration or qualification of or with any United States court or
governmental agency or body is required for the issue and sale of the
Securities by the Company or the consummation by the Company of the
transactions contemplated by this Agreement, except that such counsel need
not express any opinion with respect to such consents, approvals,
authorizations, orders, registrations or qualifications (A) as may be
required under the Act, the Exchange Act, the Trust Indenture Act, the
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rules and regulations issued pursuant to each such act, any order, rule or
regulation made or established by any insurance official or regulatory
authority or the National Association of Securities Dealers, Inc., or (B) as
may be required under state securities or Blue Sky laws in connection with
the purchase and distribution of the Securities by the Underwriters, (C) the
absence of which individually or in the aggregate both are not material to
the Company and its subsidiaries taken as a whole and would not have a
material adverse effect on the sale or ownership of the Securities or (D) as
may be required under foreign laws in connection with the purchase and
distribution of the Securities by any international managers; provided, that
the foregoing opinion is limited to those consents, approvals,
authorizations, orders, registrations and qualifications under laws which, in
the experience of such counsel, are normally applicable to transactions of
the type contemplated by this Agreement;
(viii) To the best of such counsel's knowledge, the Company
and its subsidiaries, as applicable, have filed all notices, reports,
documents or other information required to be filed pursuant to, and have
obtained all authorizations, approvals, orders, consents, registrations or
qualifications required to be obtained under, and have otherwise complied
with all requirements of, all applicable insurance laws and regulations known
to such counsel to be normally applicable to the transactions contemplated by
this Agreement in connection with the issuance and sale by the Company of the
Securities and, except as have been obtained pursuant to the foregoing
clause, no filing, authorization, approval, order, consent, registration or
qualification of or with any insurance regulatory agency having jurisdiction
over the Company or any of its subsidiaries or any of their properties known
to such counsel to be normally applicable to the transactions contemplated by
this Agreement or the Indenture is required for the issue and sale of the
Securities or the consummation by the Company of the transactions
contemplated by this Agreement, except such filings, authorizations,
approvals, orders, consents, registrations or qualifications which
(individually or in the aggregate) the failure to make, obtain or comply with
would not have a material adverse effect on the financial condition, business
or properties of the Company and its subsidiaries considered as a whole;
(ix) As general counsel to the Company, such counsel
reviewed the Registration Statement and Final Prospectus as amended or
supplemented, participated in various discussions with representatives of the
Underwriters and of the Company and its accountants at which contents of the
Registration Statement and Final Prospectus as amended or supplemented were
discussed; on the basis of the information that such counsel gained in the
course of his activities referred to above and as general counsel, such
counsel confirms that the Registration Statement, as of its effective date,
and the Final Prospectus, as amended or supplemented (in each case other than
with respect to the financial statements, financial and accounting data and
related schedules therein, as to which such counsel need express no opinion
or belief), appear on their face to be appropriately responsive in all
material respects to the requirements of the Act and the applicable rules and
regulations of the Commission thereunder; and, although such counsel is not
passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and Final Prospectus as amended or supplemented (except as
expressly set forth in such opinion), on the basis of the foregoing, no facts
have come to the attention of such counsel in the course of such review which
has caused such counsel to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made by the Company
prior to such Time of Delivery (other than the financial statements and
financial and accounting data and related schedules therein and other than
information under the captions "Description of Debt Securities," "Description
of Debt Warrants," "Description of Preferred Stock," "Description of
Preferred Securities," "Description of Preferred Securities Guarantees" and
"Plan of Distribution" in the Basic Prospectus and under the captions
"Description of the Senior Notes" and "Underwriting" contained in the Final
Prospectus as amended or supplemented, as to which such counsel need express
no opinion) contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statement therein not misleading or that, as of its date, the Final
Prospectus as amended or supplemented or any further amendment or supplement
thereto made by the Company prior to such Time of Delivery (other than the
financial statements and financial and accounting data and related schedules
therein and other than information under the captions "Description of Debt
Securities," "Description of Debt Warrants," "Description of Preferred
Stock," "Description of Preferred Securities," "Description of Preferred
Securities Guarantees" and "Plan of Distribution" in the Basic Prospectus and
under the captions "Description of the
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Page 14 of 40
Senior Notes" and "Underwriting" contained in the Final Prospectus as amended
or supplemented, as to which such counsel need express no opinion) contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statement therein not
misleading or that, as of the Time of Delivery, either the Registration
Statement or the Final Prospectus as amended or supplemented or any further
amendment or supplement (when considered together with the document to which
such supplement relates) thereto made by the Company prior to such Time of
Delivery (other than the financial statements and financial and accounting
data and related schedules therein and other than information under the
captions "Description of Debt Securities," "Description of Debt Warrants,"
"Description of Preferred Stock," "Description of Preferred Securities,"
"Description of Preferred Securities Guarantees" and "Plan of Distribution"
in the Basic Prospectus and under the captions "Description of the Senior
Notes" and "Underwriting" contained in the Final Prospectus as amended or
supplemented, as to which such counsel need express no opinion) contains an
untrue statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and he does not know of any
amendment to the Registration Statement required to be filed or of any
contracts or other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be incorporated by
reference into the Final Prospectus as amended or supplemented or required to
be described in the Registration Statement or the Final Prospectus as amended
or supplemented which are not filed or described as required, in each case,
other than with respect to the information under the captions "Description of
Debt Securities," "Description of Debt Warrants," "Description of Preferred
Stock," "Description of Preferred Securities," "Description of Preferred
Securities Guarantees" and "Plan of Distribution" in the Basic Prospectus and
under the captions "Description of the Senior Notes" and "Underwriting"
contained in the Final Prospectus as amended or supplemented; and
(x) On the basis of the information that such counsel
gained in the course of the review referred to in paragraph (ix) above and as
general counsel (but without passing upon or assuming any responsibility for
the accuracy, completeness or fairness of the statements contained in the
documents described below), such counsel confirms that no facts have come to
the attention of such counsel in the course of such review which have caused
such counsel to believe that the documents incorporated by reference in the
Final Prospectus as amended or supplemented (other than the financial
statements and financial and accounting data and related schedules therein or
excluded therefrom, as to which such counsel need express no opinion), when
they became effective or were filed with the Commission, as the case may be,
did not comply as to form in all material respects with the requirements of
the Act or the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder; and he has no reason to believe that any of such
documents, when they became effective or were so filed, as the case may be,
contained, in the case of a registration statement which became effective
under the Act, an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or, in the case of other documents that
were filed under the Act or the Exchange Act with the Commission, an untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements therein, in light of the circumstances under which they
were made not misleading.
(d) LeBoeuf, ▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., special counsel to the
Underwriters, shall have furnished to you their written opinion, dated the
Time of Delivery, in form and substance reasonably satisfactory to you,
covering the matters referred to in subparagraphs (i), (ii), (iii), (iv), (v)
and (vi) of paragraph (b) above.
(e) On the date hereof and the Time of Delivery of the Securities,
Deloitte & Touche shall have furnished to the Representatives a letter, dated
the effective date of the Registration Statement or, if more recently filed,
the most recent report filed with the Commission containing financial
statements and incorporated by reference in the Registration Statement if the
date of such report is later than such effective date, and a letter dated
such Time of Delivery, respectively, to the effect set forth in Schedule II
hereto, and with respect to such letter dated such Time of Delivery, in form
and substance satisfactory to the Representatives.
(f) Since the respective dates as of which information is given in
the Final Prospectus as amended or supplemented prior to the date hereof
until such Time of Delivery, there shall not have been any material increase
in
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Page 15 of 40
the consolidated capital stock (other than issuances of capital stock upon
exercise of options and stock appreciation rights, upon earn-outs of
performance shares and upon conversions of convertible securities, in each
case which were outstanding on the date of the latest balance sheet included
or incorporated by reference in the Final Prospectus) or any material
increase in the consolidated long-term debt of the Company and 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 Final Prospectus as amended or supplemented prior to the date hereof,
the effect of which, in any such case is in the judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated in the Final
Prospectus as amended or supplemented prior to the date hereof.
(g) On or after the date hereof, (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities or financial
strength or claims paying ability by any of ▇▇▇▇▇'▇ Investor Services, Inc.,
Standard & Poor's Corporation or A.M. Best & Co. and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the
Company's debt securities or financial strength or claims paying ability, the
effect of which, in any such case described in clause (i) or (ii), is in your
judgment (after consultation with the Company) so material and adverse as to
make it impracticable or inadvisable to proceed with the public offering or
the delivery of the Securities on the terms and in the manner contemplated in
the Final Prospectus as amended or supplemented prior to the date hereof.
(h) On or after the date hereof, there shall not have occurred any
of the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York declared by either Federal or New York State
authorities; or (iv) the outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a national emergency
or war, if the effect of any such event specified in this clause (iv) in the
judgment of the Representatives makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Securities on the
terms and in the manner contemplated by the Final Prospectus as amended or
supplemented prior to the date hereof.
(i) The Company shall have furnished or caused to be furnished to
the Representatives at the Time of Delivery certificates of officers of the
Company reasonably satisfactory to the Representatives as to the accuracy of
the representations and warranties of the Company herein at and as of the
Time of Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to the Time of Delivery, as
to the matters set forth in subsections (a) and (f) of this Section and as to
such other matters as the Representatives may reasonably request.
8 INDEMNIFICATION AND CONTRIBUTION. (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 Final Prospectus, the Registration Statement, the Final
Prospectus, the Final Prospectus as amended or supplemented and any other
prospectus relating to the Securities, or any amendment or supplement (when
considered together with the document to which such supplement relates)
thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action or
claim as such expenses are incurred; provided, however, that the Company
shall not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any
Preliminary Final Prospectus, the Registration
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Statement, the Final Prospectus as amended or supplemented and any other
prospectus relating to the Securities, or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives expressly for use in
the Final Prospectus as amended or supplemented relating to the Securities
and, provided, further, that the Company shall not be liable to any
Underwriter under the indemnity agreement in this subsection (a) with respect
to any Preliminary Final Prospectus, the Final Prospectus or the Final
Prospectus as amended or supplemented, as the case may be, to the extent that
any such loss, claim, damage or liability of such Underwriter results from
the fact such Underwriter sold the Securities to a person to whom there was
not sent or given, at or prior to the written confirmation of such sale, a
copy of the Final Prospectus or of the Final Prospectus as then amended or
supplemented, whichever is most recent, in any case where such delivery is
required by the Act if the Company had previously furnished copies thereof to
such Underwriter and the loss, claim, damage or liability of such Underwriter
results from an untrue statement or omission of a material fact contained in
the Preliminary Final Prospectus which was corrected in the Final Prospectus
(or the Final Prospectus as amended or supplemented). Each Underwriter will
indemnify and hold harmless the Company against any losses, claims, damages
or liabilities to which the Company may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Final Prospectus, the Registration Statement, the Final Prospectus, the Final
Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or any amendment or supplement (when considered together with
the document to which such supplement relates) thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Final Prospectus, the Registration
Statement, the Final Prospectus as amended or supplemented and any other
prospectus relating to the Securities, or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives expressly for use
therein; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred.
(b) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under such subsection, notify the indemnifying party
in writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have
to any indemnified party otherwise than under such subsection. In case any
such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
shall wish, jointly, with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party and who may act in respect of
actions involving more than one indemnified party), and, after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than
reasonable costs of investigation. Notwithstanding anything to the contrary
in this Section 8, an indemnifying party shall only be liable for the legal
fees and expenses of one national counsel and appropriate local counsel for
the indemnified parties with respect to any proceeding or related proceedings
and in connection with any one such action, suit or proceeding or separate
but substantially similar or related actions, suits or proceedings in the
same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of only one
separate firm of attorneys (in addition to any local counsel) at any time for
all such Underwriters and controlling persons not having actual or potential
differing interests with you or among themselves, which firm shall be
designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated.
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Page 17 of 40
(c) 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 Securities. If, however,
the allocation provided by the immediately preceding sentence is not
permitted by applicable law, or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party
shall contribute to such amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company on the one hand and the
Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable consideration. The
relative benefits received by the Company on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from such offering (before deducting expenses) received by
the Company bear to the total underwriting discounts and commissions received
by such Underwriters, in each case as set forth in the table on the cover
page of the Final Prospectus. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on the one hand
or the Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. With respect to any Underwriter, such relative fault shall also be
determined by reference to the extent (if any) to which such losses, claims,
damages or liabilities (or actions in respect thereof) with respect to any
Preliminary Final Prospectus result from the fact that such Underwriter sold
the Securities to a person to whom there was not sent or given, at or prior
to the written confirmation of such sale, a copy of the Final Prospectus or
of the Final Prospectus as then amended or supplemented, if the Company had
previously furnished copies thereof to such Underwriter. The Company and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (d) were determined by pro rata allocation (even
if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the applicable Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The obligations of the Underwriters in
this subsection (d) to contribute are several in proportion to their
respective underwriting obligations with respect to the Securities and not
joint.
(d) 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 Underwriters 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 (including any person who, with his consent, is named in the
Registration Statement as about to become a director of the Company) and to
each person, if any, who controls the Company within the meaning of the Act.
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Page 18 of 40
9 DEFAULT; TERMINATION. (a) If, at the Time of Delivery, any one or
more of the Underwriters shall fail or refuse to purchase Securities that it
or they have agreed to purchase hereunder on such date, and the aggregate
principal amount of Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate principal amount of the Securities to be purchased
on such date, the other Underwriters shall be obligated severally in the
proportions that the principal amount of Securities set forth opposite their
respective names in Schedule I bears to the principal amount of Securities
set forth opposite the names of all such non-defaulting Underwriters, or in
such other proportions as you may specify, to purchase the Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date; PROVIDED that in no event shall the principal amount
of Securities that any Underwriter has agreed to purchase pursuant to Section
2 be increased pursuant to this Section 9 by an amount in excess of one-ninth
of such principal amount of Securities without the written consent of such
Underwriter. If, at the Time of Delivery any Underwriter or Underwriters
shall fail or refuse to purchase Securities and the aggregate principal
amount of Securities with respect to which such default occurs is more than
one-tenth of the aggregate principal amount of Securities to be purchased on
such date, and arrangements satisfactory to you and the Company for the
purchase of such Securities are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either you or the
Company shall have the right to postpone the Time of Delivery but in no event
for longer than seven days, in order that the required changes, if any, in
the Registration Statement and in the Final Prospectus or in any other
documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
(b) If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement,
or if for any reason the Company shall be unable to perform its obligations
under this Agreement, the Company will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering contemplated hereunder.
10 SURVIVAL. The respective indemnities, agreements,
representations, warranties and other statements of the Company and the
several Underwriters, as set forth in this Agreement or made by or on behalf
of them, respectively, pursuant to this Agreement, shall remain in full force
and effect, regardless of any investigation (or any statement as to the
results thereof) made by or on behalf of any Underwriter, or the Company or
any officer or director or controlling person of the Company and shall
survive delivery of and payment for the Securities.
11 RELIANCE UPON REPRESENTATIVES. In all dealings hereunder, the
Representatives shall act on behalf of the Underwriters and the parties
hereto shall be entitled to act and rely upon any statement, request, notice
or agreement on behalf of any Underwriter made or given by such of the
Representatives, if any, as may be designated for such purpose by ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated.
12 NOTICES. All statements, requests, notices and agreements
hereunder shall be in writing, and if to the Underwriters shall be delivered
or sent by mail, telex or facsimile transmission to such Underwriters in the
care of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
Fax (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇; 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. Any such statements, requests,
notices or agreements shall take effect at the time of receipt thereof.
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Page 19 of 40
13 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company, and, to the
extent provided in Sections 8 and 9 hereof, the officers and directors of the
Company and each person who controls the Company or any Underwriter, and
their respective heirs, executors, administrators, successors and assigns,
and no other person shall acquire or have any right under or by virtue of
this Agreement. No purchaser of any of the Securities from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
14 "BUSINESS DAY." As used herein, the term "business day" shall
mean any day when the Commission's office in Washington, D.C. is open for
business.
15 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
16 COUNTERPARTS. This Agreement may be executed by any one or more
of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
15
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If the foregoing is in accordance with your understanding, please sign
and return to us eight counterparts hereof.
Very truly yours,
THE ALLSTATE CORPORATION
By:
------------------------------
Name:
Title:
Accepted as of the date hereof:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ SECURITIES CORPORATION
▇▇▇▇▇▇ BROTHERS INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
SUN TRUST EQUITABLE SECURITIES
WARBURG DILLON READ LLC
Acting on behalf of themselves and the several Underwriters named herein.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By:
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Name:
Title:
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SCHEDULE I TO UNDERWRITING AGREEMENT
Principal Amount
of Senior Notes
Underwriters Due 2005
------------ --------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated $360,000,000
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation 90,000,000
▇▇▇▇▇▇ Brothers Inc. 90,000,000
Credit Suisse First Boston Corporation 72,000,000
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. 72,000,000
▇.▇. ▇▇▇▇▇▇ Securities Inc. 72,000,000
Sun Trust Equitable Securities 72,000,000
Warburg Dillon Read LLC 72,000,000
Total $900,000,000
============
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SCHEDULE II TO UNDERWRITING AGREEMENT
Pursuant to Section 7(e) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriters to the effect that: (i)
They are independent certified public accountants with respect to the Company
and its subsidiaries within the meaning of the Act and the applicable
published rules and regulations thereunder; (ii) In their opinion, the
financial statements, certain summary and selected consolidated financial and
operating data, and any supplementary financial information and schedules
(and, if applicable, pro forma financial information) audited by them and
included or incorporated by reference in the Final Prospectus as amended or
supplemented or the Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the Act and the
related published rules and regulations thereunder; and, if applicable, they
have made a review in accordance with standards established by the American
Institute of Certified Public Accountants of the unaudited consolidated
interim financial statements, and any supplementary financial information and
schedules, selected financial data, pro forma financial information,
prospective financial statements and/or condensed financial statements
derived from audited financial statements of the Company for the periods
specified in such letter, and, as indicated in their report thereon, copies
of which have been furnished to the representatives of the Underwriters (the
"Representatives"); (iii) On the basis of limited procedures, not
constituting an audit in accordance with generally accepted auditing
standards, consisting of a reading of the unaudited financial statements and
other information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries, inspection
of the minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included or incorporated by reference in
the Final Prospectus as amended or supplemented, inquiries of officials of
the Company and its subsidiaries responsible for financial and accounting
matters and such other inquiries and procedures as may be specified in such
letter, nothing came to their attention that caused them to believe that:
(A) the unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows and
certain summary and selected consolidated financial and operating data
included or incorporated by reference in the Final Prospectus as amended or
supplemented do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the related published rules
and regulations thereunder;
(B) any other unaudited income statement data and balance
sheet items included or incorporated by reference in the Final Prospectus as
amended or supplemented do not agree with the corresponding items in the
unaudited consolidated financial statements from which such data and items
were derived, and any such unaudited data and items were not determined on a
basis substantially consistent with the basis for the corresponding amounts
in the audited consolidated financial statements included or incorporated by
reference in the Final Prospectus as amended or supplemented;
(C) the unaudited financial statements which were not
included or incorporated by reference in the Final Prospectus as amended or
supplemented but from which were derived any unaudited condensed financial
statements referred to in Clause (A) and any unaudited income statement data
and balance sheet items included or incorporated by reference in the Final
Prospectus as amended or supplemented and referred to in Clause (B) were not
determined on a basis substantially consistent with the basis for the audited
consolidated financial statements included or incorporated by reference in
the Final Prospectus as amended or supplemented;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in the Final
Prospectus as amended or supplemented do not comply as to form in all
material respects with the applicable accounting requirements of the Act and
the published rules and regulations thereunder or the pro forma adjustments
have not been properly applied to the historical amounts in the compilation
of those statements.
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(E) as of a specified date not more than five business days
prior to the date of such letter, there have been any changes in the
consolidated capital stock or any increase in the consolidated borrowings or
consolidated reserve for property- liability insurance claims and claims expense
or consolidated reserve for life insurance policy benefits, or asset reserves of
the Company and its subsidiaries, or any decreases in consolidated fixed income
securities available for sale, consolidated equity securities, consolidated
investments or shareholder equity, or any decrease in AIC's or ▇▇▇▇'▇ statutory
capital and surplus, or other items specified by the Representatives, in each
case as compared with amounts shown in the latest balance sheet included or
incorporated by reference in the Final Prospectus as amended or supplemented,
except in each case for changes, increases or decreases which the Final
Prospectus discloses have occurred or may occur or which are described in such
letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Final Prospectus as
amended or supplemented to the specified date referred to in Clause (E) there
were any decreases in consolidated premiums earned, consolidated net investment
income, or other items specified by the Representatives, or any increases in any
items specified by the Representatives, in each case as compared with the
comparable period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in each case for
decreases or increases which the Final Prospectus discloses have occurred or may
occur or which are described in such letter; and (iv) In addition to the
examination referred to in their report(s) included or incorporated by reference
in the Final Prospectus as amended or supplemented and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (ii) and (iii) above, they have carried out certain procedures as
specified in their letter, not constituting an audit in accordance with
generally accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by the Representatives, which
are derived from the general accounting records of the Company and its
subsidiaries, which appear or are incorporated by reference in the Final
Prospectus as amended or supplemented or in Part II of, or in exhibits and
schedules to, the Registration Statement specified by the Representatives, and
have compared certain of such specified amounts, percentages and financial
information with the accounting records of the Company and its subsidiaries and
have found them to be in agreement.
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SCHEDULE III TO UNDERWRITING AGREEMENT
PRINCIPAL SUBSIDIARIES JURISDICTION OF INCORPORATION
Allstate Insurance Company Illinois
Allstate Life Insurance Company Illinois
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