EXHIBIT 1.03
Hartford Capital IV
Hartford Capital V
Hartford Capital VI
% Trust Originated Preferred Securities
(liquidation amount $25 per preferred security) guaranteed
to the extent set forth in the Guarantee by
The Hartford Financial Services Group, Inc.
Underwriting Agreement
------, ---, -------
To the Underwriters named in
Schedule I to the Pricing Agreement
Ladies and Gentlemen:
From time to time Hartford Capital IV, Hartford Capital V or Hartford
Capital VI, each a statutory business trust formed under the laws of the State
of Delaware (each a "Trust" and collectively, the "Trusts") and The Hartford
Financial Services Group, Inc., a Delaware corporation, as depositor of each
trust and as guarantor (the "Guarantor"), propose to enter into one or more
Pricing Agreements (each a "Pricing Agreement") in the form of Annex I hereto,
with such additions and deletions as the parties thereto may determine, and,
subject to the terms and conditions stated herein and therein, that the Trust
identified in Schedule I to the applicable Pricing Agreement (such Trust being
the "Designated Trust" with respect to such Pricing Agreement) issue and sell to
the firms named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and the
securities specified therein) certain of its preferred securities (the
"Securities") specified in Schedule II to such Pricing Agreement (with respect
to such Pricing Agreement, the "Firm Designated Securities") representing
undivided beneficial interests in the assets of the Designated Trust, guaranteed
by the Guarantor to the extent set forth in the guarantee agreement (the
"Guarantee") identified in such Pricing Agreement. If specified in such Pricing
Agreement, the Designated Trust may grant to the Underwriters the right to
purchase at their election an additional number of Securities, specified in such
Pricing Agreement as provided in Section 3 hereof (the "Optional Designated
Securities"). The Firm Designated Securities and any Optional Designated
Preferred Securities are collectively called the "Designated Securities." The
proceeds of the sale of the Designated Securities and of common securities of
the Trust (the "Common Securities") sold to the Guarantor are to be invested in
junior subordinated deferrable interest debentures of the Guarantor (the
"Subordinated Debentures") , to be issued pursuant to a junior subordinated
indenture (the "Indenture") identified in the Pricing Agreement.
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the amended and restated trust agreement (the "Trust
Agreement") identified in such Pricing Agreement.
1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives") . The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to Underwriters who act without any firm being designated
as their representative. This Underwriting Agreement shall not be construed as
an obligation of any Trust to sell any of the Securities or as an obligation of
any of the Underwriters to purchase the Securities. The obligation of any Trust
to issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced by the Pricing
Agreement with respect to the Designated Securities specified therein. Each
Pricing Agreement shall specify the aggregate principal amount of Firm
Designated Securities, the maximum aggregate principal amount of Optional
Designated Securities, if any, the initial public offering price of such Firm
and Optional Designated Securities, the purchase price to the Underwriters of
such Designated Securities, the names of the Underwriters of such Designated
Securities, the names of the Representatives of such Underwriters and the
principal amount of such Designated Securities to be purchased by each
Underwriter and shall set forth the date, time and manner of delivery of such
Designated Securities and payment therefor. The Pricing Agreement shall also
specify (to the extent not set forth in the Trust Agreement and the registration
statement and prospectus with respect thereto) the terms of such Designated
Securities. A Pricing Agreement shall be in the form of an executed writing
(which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
2. Each of the Guarantor and the Designated Trust jointly and severally
represents and warrants to, and agrees with, each of the Underwriters that:
(a) A registration statement in respect of the Securities has
been filed with the Securities and Exchange Commission (the
"Commission"); such registration statement and any post-effective
amendment thereto, each in the form heretofore delivered or to be
delivered to the Representatives and, excluding exhibits to such
registration statement, but including all documents incorporated by
reference in the prospectus contained therein, to the Representatives
for each of the other Underwriters, have been declared effective by the
Commission in such form; no other document with respect to such
registration statement or
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document incorporated by reference therein has heretofore been filed or
transmitted for filing with the Commission (other than prospectuses
filed pursuant to Rule 424(b) of the rules and regulations of the
Commission under the securities Act of 1933, as amended (the "Act"),
each in the form heretofore delivered to the Representatives); and no
stop order suspending the effectiveness of such registration statement
has been issued and no proceeding for that purpose has been initiated
or threatened by the Commission (any preliminary prospectus included in
such registration statement or filed with the Commission pursuant to
Rule 424(a) of the rules and regulations of the Commission under the
Act being hereinafter called a "Preliminary Prospectus"; the various
parts of such registration statement, including (i) the information
contained in the form of final prospectus filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
hereof and deemed by virtue of Rule 430A under the Act to be part of
the registration statement at the time it was declared effective and
(ii) all exhibits thereto and the documents incorporated by reference
in the prospectus contained in the registration statement at the time
such part of the registration statement became effective but excluding
Forms T-l, each as amended at the time such part of the registration
statement became effective, being hereinafter called the "Registration
Statement"; the final prospectus relating to the Securities, in the
form in which it has most recently been filed, or transmitted for
filing, with the Commission on or prior to the date of this Agreement,
being hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to
the applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the
date of such Preliminary Prospectus or Prospectus, as the case may be,
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any
annual report of the Guarantor 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 reference to the Prospectus shall be deemed to refer
to the Prospectus in relation to the applicable Designated Securities
in the form in which it is filed with the Commission pursuant to Rule
424(b) under the Act in accordance with Section 5(a) hereof, including
any documents incorporated by reference therein as of the date of such
filing);
(b) The documents incorporated by reference in the Prospectus,
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 Act or the Exchange
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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; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects
to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Designated Trust or the Guarantor by an
Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating
to such Securities;
(c) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the Act and the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act") and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date and any applicable Time of
Delivery as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Designated Trust or the Guarantor by an
Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating
to such Securities;
(d) Except as described in or contemplated by the Registration
Statement and the 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 Designated Trust or the Guarantor and its subsidiaries taken as a
whole from the dates as of which information is given in the
Registration Statement and the Prospectus; and, since the respective
dates as of which information is given in the Registration Statement
and the Prospectus, there has not been any change in the 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
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of convertible securities, in each case which were outstanding on the
date of the latest balance sheet included or incorporated by reference
in the Prospectus) or any material increase in the consolidated
long-term debt of the Guarantor 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 Guarantor and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus;
(e) The Guarantor and each subsidiary of the Guarantor which
meets the definition of a significant subsidiary as defined in
Regulation S-X of the Commission (each a "Significant Subsidiary") has
been duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, with
power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus;
(f) The Guarantor has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital stock
of the Guarantor have been duly and validly authorized and issued and
are fully paid and non-assessable; all the outstanding beneficial
interests in the Designated Trust have been duly and validly authorized
and issued, are fully paid and non-assessable and conform to the
descriptions thereof contained in the Prospectus;
(g) The Designated Securities have been duly authorized, and,
when Designated Securities are issued and delivered pursuant to this
Agreement and the Pricing Agreement with respect to such Designated
Securities, such Designated Securities will have been duly and validly
issued and fully paid and nonassessable beneficial interests in the
Designated Trust entitled to the benefits provided by the Trust
Agreement, which will be substantially in the form filed as an exhibit
to the Registration Statement;
(h) The holders of the Securities (the "Securityholders") will
be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware;
(i) The Common Securities of the Designated Trust have been
duly authorized on behalf of the Designated Trust by the depositor of
the Designated Trust and upon delivery by the Designated Trust to the
Guarantor against payment thereof or as set forth in the Trust
Agreement, will be duly and validly issued and nonassessable beneficial
interests in the Designated Trust and will conform to the description
thereof contained in the Prospectus; the issuance of the Common
Securities is not subject to preemptive or other similar rights; and at
each Time of
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Delivery, all of the issued and outstanding Common Securities of the
Designated Trust will be directly owned by the Guarantor free and clear
of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity;
(j) The Guarantee, the Trust Agreement, the Subordinated
Debentures and the Indenture (the Guarantee, the Trust Agreement, the
Subordinated Debentures and the Indenture being collectively referred
to as the "Guarantor Agreements") have each been duly authorized and
when validly executed and delivered by the Guarantor and, in the case
of the Guarantee, by the Guarantee Trustee (as defined in the
Guarantee), in the case of the Trust Agreement, by the Trustees (as
defined in the Trust Agreement) and, in the case of the Indenture, by
the Trustee named therein (the "Debenture Trustee"), and, in the case
of the Subordinated Debentures, when validly issued by the Guarantor
and validly authenticated and delivered by the Debenture Trustee, will
constitute valid and legally binding obligations of the Guarantor,
enforceable in accordance with their respective terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing; the Trust Agreement, the
Indenture and the Guarantee have been duly qualified under the Trust
Indenture Act; the Subordinated Debentures are entitled to the benefits
of the Indenture; and the Guarantor Agreements will conform to the
descriptions thereof in the Prospectus;
(k) The issue and sale of the Designated Securities and the
compliance by the Designated Trust with all of the provisions of the
Designated Securities, the Trust Agreement, this Agreement and any
Pricing Agreement, the purchase of the Subordinated Debentures by the
Designated Trust and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Designated Trust is a party or by
which the Designated Trust is bound or to which any of the property or
assets of the Designated Trust is subject, nor will such action result
in any violation of the provisions of the Trust Agreement or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Designated Trust or any of
its properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Designated
Securities and the Common Securities by the Designated Trust, the
purchase of the Subordinated Debentures by the Designated Trust or the
consummation by the Designated Trust of the transactions contemplated
by this Agreement or any Pricing Agreement or the Trust Agreement,
except such as have been, or will have been prior to the Time of
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Delivery, obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Securities by the
Underwriters;
(l) The issuance by the Guarantor of the Guarantee, the
compliance by the Guarantor with all of the provisions of this
Agreement and the Pricing Agreement, the execution, delivery and
performance by the Guarantor of the Guarantor Agreements, and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Guarantor or any of its Significant
Subsidiaries is a party or by which the Guarantor or any of its
Significant Subsidiaries is bound or to which any of the property or
assets of the Guarantor or any of its Significant Subsidiaries is
subject, nor will such action result in any violation of the provisions
of the Amended and Restated Certificate of Incorporation or Amended and
Restated By-laws of the Guarantor or the charter or by-laws of any of
its Significant Subsidiaries or any statute or any order, rule or
regulation of any court or governmental agency or body (including,
without limitation, any insurance regulatory agency or body) having
jurisdiction over the Guarantor or any of its Significant Subsidiaries
or any of their properties; and 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 Guarantee
or the consummation by the Guarantor of the other transactions
contemplated by this Agreement or the Pricing Agreement, except such as
have been or will have been obtained prior to the First Time of
Delivery, the registration under the Act of the Securities and the
qualification of the Trust Agreement, the Indenture and the Guarantee
under the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase
of the Securities and distribution of the Securities by the
Underwriters;
(m) Neither the Designated Trust nor the Guarantor is, and
after giving effect to the offering and sale of the Designated
Securities, neither the Designated Trust nor the Guarantor will be, 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 (the "Investment Company Act");
(n) Except as described in the Prospectus, there is no action,
suit or proceeding pending, nor to the knowledge of the Guarantor, is
there any action, suit or proceeding threatened, which might reasonably
be expected to result in a material adverse change in the financial
condition, results of operations or
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business of the Guarantor and its subsidiaries taken as a whole or
which is required to be disclosed in the Registration Statement;
(o) The Pricing Agreement with respect to the Designated
Securities has been duly authorized, executed and delivered by the
Guarantor and the Designated Trust; and
(p) 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 described in the Registration Statement or the
Prospectus which are not filed or described as required.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities, the several Underwriters propose to offer the Firm
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
The Designated Trust may specify in the Pricing Agreement applicable to
any Designated Securities that the Designated Trust thereby grants to the
Underwriters the right (an "Over-allotment Option") to purchase at their
election up to the number of Optional Designated Securities set forth in such
Pricing Agreement, at the terms set forth in the paragraph above, for the sole
purpose of covering over-allotments in the sale of the Firm Designated
Securities. Any such election to purchase Optional Designated Securities may be
exercised only by written notice from the Representatives to the Designated
Trust and the Guarantor, given within a period specified in the Pricing
Agreement, setting forth the aggregate number of Optional Designated Securities
to be purchased and the date on which such Optional Designated Securities are to
be delivered, as determined by the Representatives but in no event earlier than
the First Time of Delivery (as defined in Section 4 hereof) , or, unless the
Representatives, the Guarantor and the Designated Trust otherwise agree in
writing, earlier than or later than the respective number of business days after
the date of such notice set forth in such Pricing Agreement.
The number of Optional Designated Securities to be added to the number
of Firm Designated Securities to be purchased by each Underwriter as set forth
in Schedule I to the Pricing Agreement applicable to such Designated Securities
shall be, in each case, the number of Optional Designated Securities which each
of the Guarantor and the Designated Trust has been advised by the
Representatives have been attributed to such Underwriter, provided that, if each
of the Guarantor and the Designated Trust has not been so advised, the number of
Optional Designated Securities to be so added shall be, in each case, that
proportion of Optional Designated Securities which the number of Firm Designated
Securities to be purchased by such Underwriter under such Pricing
8
Agreement bears to the aggregate number of Firm Designated Securities (rounded
as the Representatives may determine to the nearest 100 securities). The total
number of Designated Securities to be purchased by all the Underwriters pursuant
to such Pricing Agreement shall be the aggregate number of Firm Designated
Securities set forth in Schedule I to such Pricing Agreement plus the aggregate
number of the Optional Designated Securities which the Underwriters elect to
purchase.
4. Designated Securities to be purchased by each Underwriter pursuant
to the Pricing Agreement relating thereto, in definitive form to the extent
practicable, and in such authorized denominations and registered in such names
as the Representatives may request upon at least forty-eight hours' prior notice
to the Designated Trust, shall be delivered by or on behalf of the Designated
Trust to the Representatives for the account of such Underwriter, against
payment by such Underwriter or on its behalf of the purchase price thereof or by
wire transfer of Federal (same day) funds to the account specified by the
Designated Trust at the place and time and date specified in such Pricing
Agreement or at such other place and time and date as the Representatives and
the Designated Trust may agree upon in writing. Such time and date for delivery
of Firm Designated Securities pursuant to the Pricing Agreement relating thereto
is herein called the "First Time of Delivery," such time and date for delivery
of Optional Designated Securities, if not the First Time of Delivery, is herein
called the "Second Time of Delivery," and each such time and date is herein
called the "Time of Delivery."
5. The Designated Trust and the Guarantor jointly and severally agree
with each of the Underwriters of any Designated Securities:
(a) To prepare the Prospectus as amended and supplemented in
relation to the applicable Designated Securities in a form approved by
the Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Act not later than the Commission's close of business on the
second business day following the execution and delivery of the Pricing
Agreement relating to the applicable Designated Securities or, if
applicable, such earlier time as may be required by Rule 424(b); to
make no further amendment or any supplement to the Registration
Statement or Prospectus as amended or supplemented after the date of
the Pricing Agreement relating to such Securities and prior to the Time
of Delivery for such Securities which shall be disapproved by the
Representatives for such Securities promptly after reasonable notice
thereof; to advise the Representatives promptly of any such amendment
or supplement after such Time of Delivery and furnish the
Representatives with copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be filed by
the Guarantor with the Commission pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act for so long as the delivery of a
prospectus is required in connection with the offering or sale of such
Securities, and during such same period to advise the Representatives,
promptly after it receives notice thereof, of
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the time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed with the Commission, of the issuance
by the Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Securities, of the
suspension of the qualification of such Securities for offering or sale
in any jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or Prospectus
or for additional information; and, in the event of the issuance of any
such stop order or of any such order preventing or suspending the use
of any prospectus relating to the Securities or suspending any such
qualification, to 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 such Securities for
offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of such Securities, provided that in connection therewith
neither the Designated Trust nor the Guarantor shall be required to
qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
(c) To furnish the Underwriters with copies of the 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 Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary during such same period to amend
or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply
with the Act, the Exchange Act or the Trust Indenture Act, to notify
the Representatives and upon their request to file such document and to
prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives may from
time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or
omission or effect such compliance;
(d) In the case of the Guarantor, to make generally available
to its security holders as soon as practicable, but in any event not
later than eighteen
10
months after the effective date of the Registration Statement (as
defined in Rule 158(c)), an earnings statement of the Guarantor and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations of the Commission thereunder
(including at the option of the Guarantor Rule 158);
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and
including the earlier of (i) the termination of trading restrictions
for such Designated Securities, as notified to the Guarantor by the
Representatives and (ii) - days after the Time of Delivery for
such Designated Securities, not to offer, sell, contract to sell or
otherwise dispose of any Securities, any other beneficial interests in
the assets of the Designated Trust, or any preferred securities or any
other securities of the Designated Trust or the Guarantor, as the case
may be, that are substantially similar to such Designated Securities
(including any guarantee of such securities) or any securities that are
convertible into or exchangeable for, or that represent the right to
receive securities, preferred securities or any such substantially
similar securities of either the Designated Trust or the Guarantor;
(f) In the case of the Guarantor, to issue the Guarantee
concurrently with the issue and sale of the Securities as contemplated
herein or in the Pricing Agreement; and
(g) To use its best efforts to list, subject to notice of
issuance, the Securities on the New York Stock Exchange.
6. The Guarantor covenants and agrees with the several Underwriters
that the Guarantor will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Trusts' and the Guarantor's counsel and
accountants in connection with the registration of the Securities under the Act
and all other expenses in connection with the preparation, printing and filing
of the Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Pricing Agreement, any
Trust Agreement, any Indenture, any Guarantee, any Blue Sky or similar
investment surveys or memoranda and any other documents 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 laws as provided in Section 5(b) hereof, including
the fees and disbursements of counsel for the Underwriters in connection with
such qualification and in connection with the Blue Sky and legal investment
surveys; (iv) any fees charged by securities rating services for rating the
Securities; (v) any filing fees incident to any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
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Securities; (vi) the cost of preparing the Securities and the Subordinated
Debentures; (vii) the fees and expenses of any Trustee, Debenture Trustee and
Guarantee Trustee, and any agent of any trustee and the fees and disbursements
of counsel for any trustee in connection with any Trust Agreement, Indenture,
Guarantee and the Securities; (viii) the cost of qualifying the Securities with
The Depository Trust Company; (ix) all fees and expenses in connection with the
listing of the Securities on the New York Stock Exchange and the cost of
registering the Securities under Section 12 of the Exchange Act; and (x) all
other costs and expenses incident to the performance of its obligations
hereunder and under any Over-allotment Option which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, Section 8 and Section 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Securities by them, and
any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Designated Trust and
the Guarantor in or incorporated by reference in the Pricing Agreement relating
to such Designated Securities are, at and as of the respective Time of Delivery
for such Designated Securities, true and correct, the condition that the
Designated Trust and the Guarantor shall have performed all of their obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to
the applicable Designated Securities shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act
and in accordance with Section 5(a) hereof; 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 Underwriters shall have furnished to the
Representatives such opinion or opinions, dated the respective Time of
Delivery for such Designated Securities, the validity of the
Subordinated Debentures, the Guarantee, the Registration Statement, the
Prospectus as amended or supplemented and other related matters as the
Representatives 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;
12
(c) Counsel for the Designated Trust and the Guarantor
satisfactory to the Representatives shall have furnished to the
Representatives their written opinion, dated the respective Time of
Delivery for such Designated Securities, in form and substance
satisfactory to the Representatives, to the effect that:
(i) The Guarantor has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, with power and
authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus as amended
or supplemented;
(ii) The Guarantor has an authorized capitalization
as set forth in the Prospectus as amended or supplemented and
all of the issued shares of capital stock of the Guarantor
have been duly and validly authorized and issued and are fully
paid and non-assessable;
(iii) Except as described in the Prospectus, as
amended or supplemented on or prior to the date of the Pricing
Agreement relating to the Designated Securities, there is no
action, suit or proceeding pending, nor to the best of such
counsel's knowledge, is there any action, suit or proceeding
threatened, which might reasonably be expected to result in a
material adverse change in the financial condition, results of
operations or business of the Guarantor and its subsidiaries
taken as a whole or which is required to be disclosed in the
Registration Statement;
(iv) This Agreement and the Pricing Agreement with
respect to the Designated Securities have been duly
authorized, executed and delivered by the Designated Trust and
the Guarantor;
(v) The Designated Securities have been duly
authorized by the depositor on behalf of the Designated Trust,
are duly and validly issued and nonassessable beneficial
interests in the Designated Trust and are entitled to the
benefits provided by the Trust Agreement; and the Designated
Securities conform to the descriptions thereof in the
Prospectus as amended or supplemented;
(vi) The issuance by the Guarantor of the Guarantee
and the Subordinated Debentures, the compliance by the
Guarantor with all of the provisions of this Agreement, the
execution, delivery and performance by the Guarantor of the
Guarantor Agreements and the consummation of the transactions
herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan
13
agreement or other agreement or instrument known to such
counsel to which the Guarantor or any of its Significant
Subsidiaries is a party or by which the Guarantor or any of
its Significant Subsidiaries is bound or to which any of the
property or assets of the Guarantor or any of its Significant
Subsidiaries is subject, nor will such actions result in any
violation of the provisions of the Guarantor's Amended and
Restated Certificate of Incorporation, as amended (the
"Amended and Restated Certificate of Incorporation") or
Amended and Restated By-laws or any statute or any order, rule
or regulation known to such counsel of any court or
governmental agency or body (including any insurance
regulatory agency or body) having jurisdiction over the
Guarantor or any of its Significant Subsidiaries or any of
their properties;
(vii) The Guarantor Agreements have each been duly
authorized, executed and delivered by the parties thereto and
constitute valid and legally binding obligations of the
Guarantor, enforceable in accordance with their respective
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium 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 Guarantor Agreements conform to the descriptions
thereof in the Prospectus as amended or supplemented; the
Subordinated Debentures are entitled to the benefits provided
by the Indenture; and the Trust Agreement, the Indenture and
the Guarantee have been duly qualified under the Trust
Indenture Act;
(viii) The issue and sale of the Designated
Securities and the compliance by the Designated Trust with all
of the provisions of the Designated Securities, the Trust
Agreement, this Agreement and the Pricing Agreement with
respect to the Designated Securities, the purchase by the
Designated Trust of the Subordinated Debentures and the
consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute
a default under, any agreement or instrument known to such
counsel to which the Designated Trust is a party or by which
the Designated Trust is bound or to which any of the property
or assets of the Designated Trust is subject;
(ix) 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
Guarantee or the consummation by the Guarantor of the
transactions contemplated by this Agreement or such Pricing
Agreement or the Guarantor Agreements, except such as have
14
been obtained under the Act and the Trust Indenture Act and
such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution
of the Designated Securities by the Underwriters;
(x) Neither the Designated Trust nor the Guarantor is
an "investment company" or an entity controlled by an
"investment company" required to be registered under the
Investment Company Act;
(xi) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the
financial statements and related schedules and other financial
data therein, as to which such counsel need express no
opinion), when they became effective or were filed with the
Commission, as the case may be, complied 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 based upon specified
participation of such counsel in connection with the
preparation of the Registration Statement, such counsel 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,
and, in the case of other documents which 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 in order to make the statements therein in the
light of the circumstances under which they were made when
such documents were so filed, not misleading; it being
understood that such counsel need express no opinion as to the
financial statements or other financial data included in any
of the documents mentioned in this clause and that such
counsel may state that he has not independently verified
factual statements in any such documents; and
(xii) The Registration Statement and the Prospectus
as amended or supplemented and any further amendments and
supplements thereto made by the Guarantor or the Designated
Trust on or prior to the date of the Pricing Agreement
relating to the Designated Securities (other than the
financial statements and related schedules and other financial
data therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the Act and the Trust Indenture Act and the
rules and regulations thereunder; based upon specified
participation of such counsel in connection with the
preparation
15
of the Registration Statement and the Prospectus, such counsel
has no reason to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made
by the Guarantor or the Designated Trust on or prior to the
date of the Pricing Agreement relating to the Designated
Securities (other than the financial statements and related
schedules and other financial data therein, as to which such
counsel need express no opinion) contained an untrue statement
of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading or that, as of its date, the
Prospectus as amended or supplemented or any further amendment
or supplement thereto made by the Guarantor or the Designated
Trust on or prior to the date of the Pricing Agreement
relating to the Designated Securities (other than the
financial statements and related schedules and other financial
data therein, 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 in order to make
the statements therein, in light of the circumstances in which
they were made, not misleading or that, as of the Time of
Delivery, either the Registration Statement or the Prospectus
as amended or supplemented or any further amendment or
supplement thereto made by the Guarantor or the Designated
Trust on or prior to the date of the Pricing Agreement
relating to the Designated Securities (other than the
financial statements and related schedules and other financial
data therein, 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 in order to make the
statements therein, in light of the circumstances in which
they were made, not misleading; and such counsel does not know
of any amendment to the Registration Statement required to be
filed or 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
Prospectus as amended or supplemented or required to be
described in the Registration Statement or the Prospectus as
amended or supplemented which are not filed or incorporated by
reference or described as required; it being understood that
such counsel may state that he has not independently verified
factual statements in the Prospectus (or any such amendment or
supplement);
(d) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special Delaware Counsel to the
Designated Trust and the Guarantor, shall have furnished to you, the
Guarantor and the Designated Trust their written opinion, dated the
respective Time of Delivery, in form and substance satisfactory to you,
to the effect that
(i) The Designated Trust has been duly created and is
validly existing in good standing as a business trust under
the Delaware Business
16
Trust Act, and all filings required under the laws of the
State of Delaware with respect to the creation and valid
existence of the Designated Trust as a business trust have
been made;
(ii) Under the Delaware Business Trust Act and the
Trust Agreement, the Designated Trust has the power and
authority to own property and conduct its business, all as
described in the Prospectus;
(iii) The Trust Agreement constitutes a valid and
legally binding obligation of the Guarantor and the Trustees,
enforceable against the Guarantor and the Trustees, in
accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity
principles;
(iv) Under the Delaware Business Trust Act and the
Trust Agreement, the Designated Trust has the power and
authority to (a) execute and deliver, and to perform its
obligations under the Underwriting Agreement and the Pricing
Agreement, and (b) issue and perform its obligations under the
Designated Securities and the Common Securities;
(v) Under the Delaware Business Trust Act and the
Trust Agreement, the execution and delivery by the Designated
Trust of the Underwriting Agreement and the Pricing Agreement,
and the performance by the Designated Trust of its obligations
thereunder, have been duly authorized by all necessary action
on the part of the Designated Trust;
(vi) The Designated Securities have been duly
authorized by the Trust Agreement and are duly and validly
issued and, subject to the qualifications set forth herein,
fully paid and nonassessable beneficial interests in the
Designated Trust and are entitled to the benefits provided by
the Trust Agreement; the Securityholders, as beneficial owners
of the Designated Trust, will be entitled to the same
limitation of personal liability extended to stockholders of
private corporations for profit organized under the General
Corporation Law of the State of Delaware; provided that such
counsel may note that the Securityholders may be obligated,
pursuant to the Trust Agreement, to (a) provide indemnity
and/or security in connection with and pay taxes or
governmental charges arising from transfers or exchanges of
Securities Certificates and the issuance of replacement
Securities Certificates and (b) provide security and indemnity
in connection with requests of or directions to the Property
Trustee (as defined in the Trust Agreement) to exercise its
rights and remedies under the Trust Agreement;
17
(vii) The Common Securities have been duly authorized
by the Trust Agreement and are validly issued and represent
beneficial interests in the Designated Trust;
(viii) Under the Delaware Business Trust Act and the
Trust Agreement, the issuance of the Designated Securities and
the Common Securities is not subject to preemptive rights;
(ix) The issuance and sale by the Designated Trust of
Designated Securities and the Common Securities, the
execution, delivery and performance by the Designated Trust of
the Underwriting Agreement and the Pricing Agreement, the
consummation by the Designated Trust of the transactions
contemplated thereby and compliance by the Designated Trust
with its obligations thereunder will not violate (a) any of
the provisions of the Certificate of Trust of the Designated
Trust or the Trust Agreement, or (b) any applicable Delaware
law or administrative regulation;
(x) Assuming that the Designated Trust derives no
income from or connected with services provided within the
State of Delaware and has no assets, activities (other than
maintaining the Delaware Trustee and the filing of documents
with the Secretary of State of the State of Delaware) or
employees in the State of Delaware, no authorization,
approval, consent or order of any Delaware court or
governmental authority or agency is required to be obtained by
the Designated Trust solely in connection with the issuance
and sale of the Designated Securities and the Common
Securities. In rendering the opinion expressed in this
paragraph (x) , such counsel need express no opinion
concerning the securities laws of the State of Delaware; and
(xi) Assuming that the Designated Trust derives no
income from or connected with services provided within the
State of Delaware and has no assets, activities (other than
maintaining the Delaware Trustee and the filing of documents
with the Secretary of State of the State of Delaware) or
employees in the State of Delaware, the Securityholders (other
than those holders of the Securities who reside or are
domiciled in the State of Delaware) will have no liability for
income taxes imposed by the State of Delaware solely as a
result of their participation in the Designated Trust, and the
Designated Trust will not be liable for any income tax imposed
by the State of Delaware.
(e) Debevoise & ▇▇▇▇▇▇▇▇, as tax counsel for the Designated
Trust and the Guarantor, shall have furnished to you their written
opinion, dated the
18
respective Time of Delivery, in form and substance satisfactory to you,
to the effect that such firm confirms its opinion set forth in the
Prospectus under the caption "Certain Federal Income Tax
Considerations";
(f) On the date of the Pricing Agreement for the Designated
Securities at a time prior to the execution of the Pricing Agreement
with respect to such Designated Shares and at each Time of Delivery for
such Designated Securities, the independent accountants of the
Guarantor who have certified the financial statements of the Guarantor
and its subsidiaries included or incorporated by reference in the
Registration Statement shall have furnished to the Representatives a
letter, dated such Time of Delivery and, if applicable, such date of
the Pricing Agreement, respectively, as to such matters ordinarily
included in accountants' "comfort letters" to underwriters as the
Representatives may reasonably request and in form and substance
satisfactory to the Representatives;
(g) Except as contemplated in the Prospectus, as amended or
supplemented on or prior to the date of the Pricing Agreement relating
to the Designated Securities, since the respective dates as of which
information is given in such Prospectus, there shall not have been any
change 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 included or incorporated by reference in
such Prospectus) or any material increase in the consolidated or
long-term debt of the Guarantor 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 Guarantor and its subsidiaries,
otherwise than as set forth or contemplated in such Prospectus, 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
Designated Securities on the terms and in the manner contemplated in
the Prospectus as amended or supplemented;
(h) On or after the date of the Pricing Agreement relating to
the Designated Securities until the respective Time of Delivery of the
Designated Securities, (i) no downgrading shall have occurred in the
rating accorded the Guarantor's debt securities by any "nationally
recognized statistical rating organization," as that term is defined by
the Commission for purposes of Rule 436(g)(2) under the Act and (ii) no
such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating
of any of the Guarantor's debt securities;
19
(i) On or after the date of the Pricing Agreement relating to
the Designated Securities until the respective Time of Delivery of the
Designated Securities, there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a material
suspension or limitation in trading in the Company's securities on the
New York Stock Exchange; (iii) a general moratorium on commercial
banking activities in New York declared by either Federal or New York
State authorities; or (iv) a material adverse change in the financial
markets, the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national emergency
or war, or other calamity or crisis, 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 Designated Securities on the terms and
in the manner contemplated in the Prospectus as amended or
supplemented;
(j) The Designated Securities to be sold by the Designated
Trust at the respective Time of Delivery shall have been duly listed,
subject to notice of issuance, on the New York Stock Exchange; and
(k) The Designated Trust and the Guarantor shall have
furnished or caused to be furnished to the Representatives at the
respective Time of Delivery for the Designated Securities certificates
of officers of the Designated Trust and the Guarantor satisfactory to
the Representatives as to the accuracy of the representations and
warranties of the Trust and the Guarantor herein at and as of such Time
of Delivery, as to the performance by the Designated Trust and the
Guarantor of all of their obligations hereunder to be performed at or
prior to such Time of Delivery, as to the matters set forth in
subsections (a) and (f) of this Section and as to such other matters as
the Representatives may reasonably request.
8. (a) The Designated Trust and the Guarantor will jointly and
severally indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Designated Securities, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action or
claim as such expenses are incurred; provided, however,
20
that neither the Designated Trust nor the Guarantor shall be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Designated Securities, or
any such amendment or supplement in reliance upon and in conformity with written
information furnished to the Designated Trust or the Guarantor by any
Underwriter of Designated Securities through the Representatives expressly for
use in the Prospectus as amended or supplemented relating to such Securities
and; provided, further, that neither the Designated Trust nor the Guarantor
shall be liable to any Underwriter under the indemnity agreement in this
subsection (a) with respect to any Preliminary Prospectus or any preliminary
prospectus supplement to the extent that a court of competent jurisdiction has
found by final and nonappealable order that any such loss, claim, damage or
liability of such Underwriter results from the fact that such Underwriter sold
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 Prospectus as then amended or
supplemented (excluding documents incorporated by reference) (it being
understood that if at the time of any such claim such Underwriter shall certify
that it has sent or given the Prospectus as then amended or supplemented to any
person making such claim at or prior to the written confirmation of such sale,
it shall be presumed that such Prospectus has been so sent or given unless the
Designated Trust or the Guarantor shall have sustained the burden of proving, in
a court of competent jurisdiction by a final and nonappealable order, that the
facts are otherwise), if (i) such delivery to such person is required by Section
5 of the Act, (ii) the Designated Trust or the Guarantor has furnished copies of
such Prospectus as amended or supplemented to such Underwriter a reasonable
period of time prior to the Underwriter being required so to deliver such
Prospectus as amended or supplemented and (iii) such Prospectus as amended or
supplemented corrected the untrue or alleged untrue statement or omission or
alleged omission of material fact contained in the Preliminary Prospectus or any
preliminary prospectus supplement.
(b) Each Underwriter will severally and not jointly indemnify
and hold harmless the Designated Trust and the Guarantor against any
losses, claims, damages or liabilities to which the Designated Trust or
the Guarantor may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue
21
statement or alleged untrue statement or omission or alleged omission
was made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or
any such amendment or supplement in reliance upon and in conformity
with written information furnished to the Designated Trust or the
Guarantor by such Underwriter through the Representatives expressly for
use therein; and will reimburse the Designated Trust or the Guarantor
for any legal or other expenses reasonably incurred by the Designated
Trust or the Guarantor in connection with investigating or defending
any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify
the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under such subsection. In the case of parties indemnified pursuant to
Section 8(a) above, counsel to the indemnified parties shall be
selected by the Representatives, and, in the case of parties
indemnified pursuant to Section (8b) above, counsel to the indemnified
parties shall be selected by the Guarantor. An indemnifying party may
participate at its own expense in the defense of such action; provided,
however, that counsel to the indemnifying party shall not (except with
the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable
for fees and expense of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise
or consent to the entry of any judgment with respect to any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 8
(whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceedings 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
22
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 Designated Trust and the Guarantor on
the one hand and the Underwriters of the Designated Securities on the
other from the offering of the Designated Securities to which such
loss, claim, damage or liability (or action in respect thereof)
relates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection
(c) above, then each indemnifying party shall contribute to such amount
paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Designated Trust and the Guarantor on the one
hand and the Underwriters of the Designated Securities on the other in
connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations. The relative
benefits received by the Designated Trust and the Guarantor on the one
hand and such Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from such offering (before
deducting expenses) received by the Designated Trust less the total
underwriting compensation paid by the Guarantor bear to the total
underwriting discounts and commissions received by such Underwriters.
The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact
relates to information supplied by the Designated Trust and the
Guarantor on the one hand or such Underwriters on the other and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Designated Trust, the Guarantor and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred
to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the applicable Designated Securities
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
23
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the
Underwriters of Designated Securities in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations with respect to such Securities and not joint.
(e) The obligations of the Designated Trust and the Guarantor
under this Section 8 shall be in addition to any liability which the
Designated Trust and the Guarantor may otherwise have and shall extend,
upon the same terms and conditions, to each partner, officer and
director of the Underwriters and to each person, if any, who controls
any Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section 8 shall be in addition to any
liability which the respective Underwriters may otherwise have and
shall extend, upon the same terms and conditions, to each officer and
director of the Guarantor, to each administrative trustee of the
Designated Trust and to each person, if any, who controls the
Designated Trust or the Guarantor within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Firm Designated Securities or the Optional Designated Securities which it
has agreed to purchase under the Pricing Agreement relating to such Designated
Securities, the Representatives may in their discretion arrange for themselves
or another party or other parties to purchase such Designated Securities on the
terms contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such Firm
Designated Securities or such Optional Designated Securities, as the case may
be, then the Designated Trust and the Guarantor shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties satisfactory to the Representatives to purchase such Designated
Securities on such terms. In the event that, within the respective prescribed
period, the Representatives notify the Designated Trust and the Guarantor that
they have so arranged for the purchase of such Designated Securities, or the
Designated Trust and the Guarantor notify the Representatives that they have so
arranged for the purchase of such Designated Securities, the Representatives or
the Designated Trust and the Guarantor shall have the right to postpone the Time
of Delivery for such Designated Securities for a period of not more than seven
days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus as amended or supplemented, or in any
other documents or arrangements, and the Designated Trust and the Guarantor
agree to file promptly any amendments or supplements to the Registration
Statement or the Prospectus which in the opinion of the Representatives may
thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like effect as if
such person had originally been a party to the Pricing Agreement with respect to
such Designated Securities.
24
(b) If, after giving effect to any arrangements for the
purchase of the Firm Designated Securities or Optional Designated
Securities, as the case may be, of a defaulting Underwriter or
Underwriters by the Representatives and the Designated Trust and the
Guarantor as provided in subsection (a) above, the aggregate principal
amount of such Designated Securities which remains unpurchased does not
exceed one-eleventh of the aggregate principal amount of the Firm
Designated Securities or Optional Designated Securities, as the case
may be, to be purchased at the respective Time of Delivery, then the
Designated Trust and the Guarantor shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Firm
Designated Securities or Optional Designated Securities, as the case
may be, which such Underwriter agreed to purchase under the Pricing
Agreement relating to such Designated Securities and, in addition, to
require each non-defaulting Underwriter to purchase its pro rata share
(based on the principal amount of Firm Designated Securities or
Optional Designated Securities, as the case may be, which such
Underwriter agreed to purchase under such Pricing Agreement) of the
Firm Designated Securities or Optional Designated Securities, as the
case may be, of such defaulting Underwriter or Underwriters for which
such arrangements have not been made; but nothing herein shall relieve
a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Firm Designated Securities or Optional Designated
Securities, as the case may be, of a defaulting Underwriter or
Underwriters by the Representatives and the Designated Trust and the
Guarantor as provided in subsection (a) above, the aggregate principal
amount of Firm Designated Securities or Optional Designated Securities,
as the case may be, which remains unpurchased exceeds one-eleventh of
the aggregate principal amount of the Firm Designated Securities or
Optional Designated Securities, as the case may be, to be purchased at
the respective Time of Delivery, as referred to in subsection (b)
above, or if the Designated Trust and the Guarantor shall not exercise
the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Firm Designated Securities or Optional
Designated Securities, as the case may be, of a defaulting Underwriter
or Underwriters, then the Pricing Agreement relating to such Firm
Designated Securities or Optional Designated Securities, as the case
may be, shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter, the Designated Trust or the Guarantor,
except for the expenses to be borne by the Designated Trust, the
Guarantor and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its
default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Designated Trust, the Guarantor and the several
Underwriters, as
25
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
Designated Trust, the Guarantor, or any officer or director or controlling
person of the Designated Trust or the Guarantor, and shall survive delivery of
and payment for the Securities.
11. If any Pricing Agreement or Over-allotment Option shall be
terminated pursuant to Section 9 hereof, neither the Designated Trust nor the
Guarantor shall then be under any liability to any Underwriter with respect to
the Firm Designated Securities or Optional Designated Securities covered by such
Pricing Agreement except as provided in Section 6 and Section 8 hereof; but, if
for any other reason Designated Securities are not delivered by or on behalf of
the Designated Trust as provided herein, the Designated Trust and the Guarantor
will reimburse the Underwriters through the Representatives for all
out-of-pocket expenses approved in writing by the Representatives, including
fees and disbursements of counsel, reasonably incurred by the Underwriters in
making preparations for the purchase, sale and delivery of such Designated
Securities, but the Designated Trust and the Guarantor shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters
of Designated Securities shall act on behalf of each of such Underwriters, and
the parties hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Designated Trust or the Guarantor shall be
delivered or sent by mail, telex or facsimile transmission to the address of the
Designated Trust or the Guarantor set forth in the Registration Statement:
Attention: Corporate Secretary, with a copy to Hartford Fire Insurance Company,
Hartford Plaza, Hartford, Connecticut 06115. Attention: Office of the Treasurer,
Facsimile Transmission No. (▇▇▇) ▇▇▇-▇▇▇▇; provided, however, that any notice to
an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Designated Trust and the
Guarantor by the Representatives upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
26
13. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Designated Trust and
the Guarantor and, to the extent provided in Section 8 and Section 1 hereof, the
officers and directors of the Designated Trust or the Guarantor and each person
who controls the Designated Trust, the Guarantor or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day other than a Saturday or Sunday or a
day on which banks in the City of New York are authorized or required to close.
15. This Agreement and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
16. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
27
If the foregoing is in accordance with your understanding, please sign
and return to us six counterparts hereof.
Very truly yours,
THE HARTFORD FINANCIAL SERVICES GROUP, INC.
By: _________________________________
Name:
Title:
HARTFORD CAPITAL IV
By: The Hartford Financial Services
Group, Inc., as Depositor
By: _______________________________
Name:
Title:
HARTFORD CAPITAL V
By: The Hartford Financial Services
Group, Inc., as Depositor
By: _______________________________
Name:
Title:
HARTFORD CAPITAL VI
By: The Hartford Financial Services
Group, Inc., as Depositor
By: _______________________________
Name:
Title:
28
Accepted on behalf of ourselves and the other Underwriters listed in Schedule I
to the Pricing Agreement:
By: _____________________________
Name:
Title:
29
ANNEX I
PRICING AGREEMENT
To the Underwriters named in
Schedule I hereto.
-----, ---, ------
Ladies and Gentlemen:
Hartford Capital -, a statutory business trust formed under the laws of
the State of Delaware (the "Designated Trust") and The Hartford Financial
Services Group, Inc., a Delaware corporation (the "Guarantor"), propose, subject
to the terms and conditions stated herein and in the Underwriting Agreement,
dated _______, ___, _____, 2001 (the "Underwriting Agreement"), between the
Guarantor on the one hand and the Underwriters named in Schedule I hereto (the
"Underwriters") , on the other hand, to issue and sell to the Underwriters the
Securities specified in Schedule II hereto (the "Designated Securities"
consisting of Firm Designated Securities and any Optional Designated Securities
the Underwriters may elect to purchase). Each of the provisions of the
Underwriting Agreement is incorporated herein by reference in its entirety, and
shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein; and each of the representations
and warranties set forth therein shall be deemed to have been made at and as of
the date of this Pricing Agreement, except that each representation and warranty
which refers to the Prospectus in Section 2 of the Underwriting Agreement shall
be deemed to be a representation or warranty as of the date of the Underwriting
Agreement in relation to the Prospectus (as therein defined), and also a
representation and warranty as of the date of this Pricing Agreement in relation
to the Prospectus as amended or supplemented relating to the Designated
Securities which are the subject of this Pricing Agreement. Each reference to
the Representatives herein and in the provisions of the Underwriting Agreement
so incorporated by reference shall be deemed to refer to you. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are used herein as
therein defined. The Representatives designated to act on behalf of the
Representatives and on behalf of each of the Underwriters of the Designated
Securities pursuant to Section 12 of the Underwriting Agreement and the address
of the Representatives referred to in such Section 12 are set forth at the end
of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, (a) the Designated
Trust agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not
I-1
jointly, to purchase from the Designated Trust, at the time and place and at the
purchase price to the Underwriters set forth in Schedule II hereto the principal
amount of Designated Securities set forth opposite the name of such Underwriter
in Schedule I hereto; (b) in the event and to the extent that the Underwriters
shall exercise the election to purchase Optional Designated Securities, as
provided below, the Designated Trust agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Designated Trust at the purchase price to the Underwriters set
out in Schedule II hereto that portion of the number of Optional Designated
Securities as to which such election shall have been exercised; and (c) the
Guarantor agrees to pay the Representatives on behalf of the Underwriters the
Underwriters' Compensation per Designated Security for each Designated Security
so issued and sold as set forth in Schedule II.
The Designated Trust hereby grants to each of the Underwriters the
right to purchase at their election up to the number of Optional Designated
Securities determined pursuant to Section 3 of the Underwriting Agreement on the
terms referred to in the paragraph above for the sole purpose of covering
over-allotments in the sale of the Firm Designated Securities. Any such election
to purchase Optional Designated Securities may be exercised by written notice
from the Representatives to the Designated Trust and the Guarantor given within
a period of - calendar days after the date of this Pricing Agreement, setting
forth the aggregate number of Optional Designated Securities to be delivered, as
determined by the Representatives but in no event earlier than the First Time of
Delivery or, unless the Representatives, the Guarantor and the Designated Trust
otherwise agree in writing, no earlier than two or later than ten business days
after the date of such notice.
I-2
If the foregoing is in accordance with your understanding, please sign
and return to us six counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the
Underwriters, the Trust and the Guarantor. It is understood that your acceptance
of this letter on behalf of each of the Underwriters is or will be pursuant to
the authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Guarantor for examination upon request, but
without warranty on the part of the Representatives as to the authority of the
signers thereof.
Very truly yours,
THE HARTFORD FINANCIAL SERVICES GROUP, INC.
By: _________________________________
Name:
Title:
HARTFORD CAPITAL -
By: The Hartford Financial Services
Group, Inc., as Depositor
By: ________________________________
Name:
Title:
Accepted as of the date hereof:
By: _____________________________
Name:
Title:
On behalf of each of the Underwriters
I-3
SCHEDULE I
TOTAL NUMBER
OF
FIRM
DESIGNATED SECURITIES
UNDERWRITER TO BE PURCHASED
--------------------------------------------------------------------------------
TOTAL:
I-4
SCHEDULE II
DESIGNATED TRUST:
TITLE OF DESIGNATED SECURITIES:
AGGREGATE LIQUIDATION AMOUNT:
PRICE TO PUBLIC:
PURCHASE PRICE BY UNDERWRITERS:
UNDERWRITERS' COMPENSATION:
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
TRUST AGREEMENT:
INDENTURE:
GUARANTEE:
MATURITY:
I-5
ANNUAL RATE OF CASH DISTRIBUTIONS:
EXTENSION PERIOD:
TERM OF DESIGNATED TRUST:
REDEMPTION PROVISIONS:
SINKING FUND PROVISIONS:
TIME OF DELIVERY:
CLOSING LOCATION:
NAMES AND ADDRESSES OF REPRESENTATIVES:
I-6