EXHIBIT 1
THE ALLSTATE CORPORATION
$650,000,000 5.95% Senior Notes Due 2036
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UNDERWRITING AGREEMENT
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New York, New York
March 21, 2006
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
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 II hereto (the
"Underwriters"), for whom you (the "Representatives") are acting as
representatives, $650,000,000 principal amount of its 5.95% Senior Notes Due
2036 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 the Sixth Supplemental Indenture,
dated as of June 12, 2000, as supplemented by the Thirteenth Supplemental
Indenture, to be dated as of March 24, 2006 (as so amended and supplemented, the
"Indenture"), between the Company and U.S. Bank National Association (as
successor to 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 meets the requirements for the use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration statement
on Form S-3 (No. 333-108253) under the Act, which has become effective, for the
registration under the Act of the Securities (such registration statement,
including the exhibits thereto, as amended at the date of this Agreement and
including the information (if any) deemed to be part of the registration
statement pursuant to Rule 430A or Rule 430B under the Act, is hereinafter
called the "Registration Statement"). No stop order suspending the effectiveness
of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or, to the knowledge of the
Company, threatened by the Commission. If the Registration Statement is an
automatic shelf registration statement as defined in Rule 405 under the Act, the
Company is eligible to use the Registration Statement as an automatic shelf
registration statement and the Company has not received notice that the
Commission objects to the use of the Registration Statement as an automatic
shelf registration statement. The Company proposes to file with the Commission
pursuant to Rule 424 under the Act a supplement or supplements relating to the
Securities and the plan of distribution thereof to the form of prospectus
included in the Registration Statement; such prospectus in the form in which it
appears in the Registration Statement is hereinafter called the "Basic
Prospectus"; and such Basic Prospectus, as so supplemented by the prospectus
supplement or supplements relating to the Securities in the form provided to the
Underwriters by the Company and first used to confirm sales of the Securities
(or in the form first made available to the Underwriters by the Company to meet
requests of purchasers pursuant to Rule 173 under the Act), 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." For purposes of this Agreement, "free writing
prospectus" means a free writing prospectus as such term is defined in Rule 405
under the Act relating to the Securities and "Time of Sale Prospectus" means the
Basic Prospectus together with the free writing prospectuses, if any, identified
in Schedule V hereto. Any reference herein to the Registration Statement, the
Basic Prospectus, any Preliminary Final Prospectus, the Time of Sale 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, as amended (the "Exchange
Act"), on or before the date of this Agreement, or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus, the Time of Sale 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, the Time of Sale
Prospectus, the Final Prospectus or any free writing prospectus shall be deemed
to refer to and include the filing of any free writing prospectus and 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, the Time
of Sale Prospectus, the Final Prospectus or any free writing 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
Time of Delivery (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 Time of Delivery, (i) the
Registration Statement, as amended as of any such time, the Time of Sale
Prospectus and the Final Prospectus, as amended or supplemented as of any such
time, and the Indenture complied and 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 Time of Sale Prospectus or the Final Prospectus, as
amended or supplemented as of such time, contained or 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
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(i) the parts of the Registration Statement which 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, the Time of Sale Prospectus 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 therein.
(c) Each document incorporated by reference in the Registration Statement,
the Time of Sale Prospectus or the Final Prospectus, at the time they were, or
hereafter are, filed with the Commission, complied or will comply and, at any
time when a prospectus relating to the Securities is required to be delivered
under the Act in connection with sales by any Underwriter or dealer, will comply
in all material respects with the Exchange Act and the rules and regulations
promulgated thereunder.
(d) The Company is not an "ineligible issuer" in connection with the
offering pursuant to Rules 164, 405 and 433 under the Act. Any free writing
prospectus that the Company is required to file pursuant to Rule 433(d) under
the Act has been, or will be, filed with the Commission in accordance with the
requirements of the Act and the applicable rules and regulations of the
Commission thereunder. Each free writing prospectus that the Company has filed,
or is required to file, pursuant to Rule 433(d) under the Act or that was
prepared by or behalf of or used by the Company complies or will comply in all
material respects with the requirements of the Act and the applicable rules and
regulations of the Commission thereunder. Except for the free writing
prospectuses, if any, identified in Schedule V hereto, and electronic road shows
each furnished to you before first use, the Company has not prepared, used or
referred to, and will not, without your prior consent, prepare, use or refer to
any free writing prospectus.
(e) 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 Time of Sale Prospectus and 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) 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 Time of Sale Prospectus and 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. The
Principal Subsidiaries are currently the only operating insurance companies that
are "significant subsidiaries" of the Company as that term is defined in Rule
1-02(w) of Regulation S-X of the rules and regulations of the Commission under
the Act.
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(g) 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 or
another Principal Subsidiary, as the case may be, free and clear of any security
interest, claim, lien or encumbrance.
(h) Each Principal Subsidiary is duly licensed or authorized as an insurer
or reinsurer in each 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 taken 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 taken 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 Time of Sale Prospectus and the Final
Prospectus, 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 taken 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, taken as a whole.
(i) 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, except where the failure to so
comply or file would not have a material adverse effect on the business,
financial position or results of operations of the Company and its subsidiaries,
taken as a whole.
(j) Other than as set forth in the Time of Sale Prospectus and the Final
Prospectus, 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 taken as a
whole; and, to the best of the Company's knowledge, no such proceedings are
threatened.
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(k) This Agreement has been duly authorized, executed and delivered by the
Company.
(l) 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.
(m) The Securities have been duly authorized and, when the Securities are
issued and delivered pursuant to this Agreement, 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.
(n) 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 Bylaws 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 taken 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 such
authorizations, approvals, orders, consents, registrations or qualifications as
may be required under 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.
(o) Except as described in or contemplated by the Registration Statement,
the Time of Sale Prospectus 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, the Time of Sale Prospectus
and the Final Prospectus; and, since the respective dates as of which
information is given in the Registration Statement, the Time of Sale Prospectus
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 Time of Sale Prospectus and the ▇▇▇▇▇
▇
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 Time of Sale Prospectus and the Final
Prospectus.
(p) There are no material contracts, agreements or understandings between
the Company and any person granting such person the right to require the Company
to file a registration statement under the Act with respect to any notes or debt
of the Company owned or to be owned by such person or to require the Company to
include such securities for registration pursuant to the Registration Statement
or pursuant to any other registration statement filed by the Company under the
Act.
(q) The Company is not, and after giving effect to the offering and sale of
the Securities and the application of the net proceeds therefrom as described in
the Time of Sale Prospectus and the Final Prospectus, will not 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.
(r) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that: (w) transactions are executed
in accordance with management's general or specific authorization; (x)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (y) access to assets is permitted only in
accordance with management's general or specific authorization; and (z) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences; in each case, within the meaning of and to the extent required by
Section 13(b)(2)(B) of the Exchange Act.
(s) During the fiscal year ended December 31, 2005, there were no changes
in the Company's internal control over financial reporting that have materially
affected, or are reasonably likely to materially affect, the Company's internal
control over financial reporting.
(t) The Company maintains disclosure controls and procedures (as such term
is defined in Rule 13a-15(e) under the Exchange Act) that are effective in
providing reasonable assurance that material information required to be
disclosed in its reports filed with or submitted to the Commission under the
Exchange Act is made known to management, including the Company's principal
executive officer and the Company's principal financial officer, as appropriate
to allow timely decisions regarding required disclosure.
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by the Company,
as to matters covered thereby, to each Underwriter.
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2. Purchase and Sale. 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 II hereto opposite
their names at 99.109% of the principal amount -- the purchase price -- plus
accrued interest, if any, from March 24, 2006 to the date of payment and
delivery.
3. Payment and Delivery of the Securities. Delivery of and payment for the
Securities shall be made at 10:00 AM, New York City time, on March 24, 2006, or
at such time on such later date not more than three Business Days after the
foregoing date as the Representatives shall designate, which date and time may
be postponed by agreement between the Representatives and the Company or as
provided in Section 11 hereof (such date and time of delivery and payment for
the Securities being herein called the "Time of Delivery"). Delivery of the
Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same day funds to an account specified by
the Company. Delivery of the Securities shall be made through the facilities of
the Depositary Trust Company unless the Representatives otherwise instruct.
4. Offering by Underwriters. It is understood that the several Underwriters
propose to offer the Securities for sale to the public as set forth in the Final
Prospectus.
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, the
Time of Sale Prospectus or the 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 the
Registration Statement has been filed or becomes effective or any supplement or
amendment to the Time of Sale Prospectus or the 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 Registration Statement, the
Time of Sale Prospectus or 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 the
Registration Statement, the Time of Sale Prospectus 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
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the Time of Sale Prospectus or the Final Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish to you a copy of each proposed free writing prospectus to be
prepared by or on behalf of, used by, or referred to by the Company and not to
use or refer to any proposed free writing prospectus to which you reasonably
object;
(c) Not to take any action that would result in an Underwriter or the
Company being required to file with the Commission pursuant to Rule 433(d) under
the Act a free writing prospectus prepared by or on behalf of the Underwriters
that the Underwriters otherwise would not have been required to file thereunder;
(d) If the Time of Sale Prospectus is being used to solicit offers to buy
the Securities at a time when the Final Prospectus is not yet available to
prospective purchasers, to furnish the Underwriters with copies of the Time of
Sale Prospectus as amended or supplemented in such quantities as the
Representatives may from time to time reasonably request, and if at such time
any event shall have occurred as a result of which the Time of Sale 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 Time of Sale Prospectus is delivered, not misleading, or, if for any
other reason it shall be necessary during such period to amend or supplement the
Time of Sale Prospectus or to file under the Exchange Act any document
incorporated by reference in the Time of Sale 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 Time of
Sale Prospectus or a supplement to the Time of Sale Prospectus which will
correct such statement or omission or effect such compliance;
(e) 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;
(f) 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 (or in lieu
thereof the notice referred to in Rule 173(a) under the Act), 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 (or in lieu thereof the notice referred to in Rule
173(a) under the Act) 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
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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 which
will correct such statement or omission or effect such compliance;
(g) 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
(h) 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.
(i) The Company will not take, directly or indirectly, any action designed
to or that would constitute or that might reasonably be expected to cause or
result in, under the Exchange Act or otherwise, stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of the
Securities.
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 incurred in connection with the preparation, printing and filing of the
Registration Statement, Basic Prospectus, any Preliminary Final Prospectus, the
Time of Sale Prospectus, the Final Prospectus and any free writing prospectus
prepared by or on behalf of, used by or referred to by the Company, and
amendments and supplements to any of the foregoing and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost of
printing or producing this Agreement, 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(e) 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 10 hereof, the
Underwriters will pay all of their own costs and expenses, including the
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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 to purchase the Securities shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein as of
the execution of this Agreement and as of the Time of Delivery, to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(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) LeBoeuf, Lamb, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, 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 is validly existing as a corporation in good standing
under the laws of the State of Delaware, with corporate power and authority
to own or lease, as the case may be, and to operate its properties and
conduct its business as described in the Time of Sale Prospectus and the
Final Prospectus;
(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 Time of Sale Prospectus and the Final
Prospectus;
(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, the Time of Sale Prospectus 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
10
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, Time of Sale Prospectus and Final
Prospectus;
(vi) The issue 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 will not conflict with or result in a breach of any of
the provisions of the Act, the Exchange Act, the Trust Indenture Act or the
rules and regulations issued pursuant to each such act.
(vii) All consents, approvals, authorizations, orders, registrations,
and qualifications of or with any United States court or governmental
agency or body 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 under the Act, the Exchange Act, the Trust Indenture Act
or the rules and regulations issued pursuant to each such act have been
obtained or made.
(viii) As such counsel, such counsel reviewed the Registration
Statement, the Time of Sale Prospectus and the 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, Time of Sale Prospectus 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, the Time of Sale Prospectus or the Final Prospectus
and shall not be required to have made an independent check or verification
thereof (except as described in paragraph (iii) 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 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 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 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 (i) as of the date hereof, the Time of Sale
Prospectus (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 in order to make the statements therein, in
light of the circumstances under which they were made not misleading or
(ii) 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 or contains an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements
11
therein, in light of the circumstances under which they were made not
misleading; and
(ix) 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) ▇▇▇▇ ▇. ▇▇▇▇▇▇, Secretary of the Company and Deputy General Counsel of
AIC (as defined below), shall have furnished to you her written opinion, dated
the Time of Delivery for the Securities, 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 Time of Sale Prospectus (such
counsel being entitled to rely, with respect to the opinion in this clause
(i), upon the opinions of members of the Company's in-house legal staff);
(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, free and clear of any perfected
security interest and, to the knowledge of such counsel, after due inquiry,
any other security interest, claim, lien or encumbrance (such counsel being
entitled to rely, with respect to 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 she believes that both you and she are
justified in relying upon such opinions or 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 taken 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 taken as a whole; the Company and each Principal Subsidiary
have all necessary authorizations, approvals, orders, consents,
registrations or qualifications of and from all insurance
12
regulatory authorities to conduct their respective businesses as described
in the Time of Sale Prospectus and the Final Prospectus, 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 taken 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, taken as a whole (such counsel being entitled to rely, with
respect to the opinion in this clause (iii), 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 she believes that both you and she are justified in
relying upon such opinions and certificates);
(iv) To the best of such counsel's knowledge, after due inquiry, 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, with respect to this clause
(iv), 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 she believes that both you and
she are justified in relying upon such opinions and certificates);
(v) To the best of such counsel's knowledge, after due inquiry, and
other than as set forth in the Time of Sale Prospectus and the Final
Prospectus, 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 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 taken 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 and 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
13
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 her
opinion); nor will any such action result in any violation of the
provisions of the Certificate of Incorporation or the Bylaws of the Company
or any of its Principal Subsidiaries 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 General Corporation Law of 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, with respect to 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
she believes that both you and she 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 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., (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, after due inquiry, the
Company and its subsidiaries, as applicable, have filed all notices,
reports, documents or other
14
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 taken as a whole or a material adverse effect on the sale or
ownership of the Securities;
(ix) To the best of such counsel's knowledge, after due inquiry, there
are no material contracts, agreements or understandings between the Company
and any person granting such person the right to require the Company to
file a registration statement under the Act with respect to any notes or
debt of the Company owned or to be owned by such person or to require the
Company to include such securities for registration pursuant to the
Registration Statement or pursuant to any other registration statement
filed by the Company under the Act;
(x) Such counsel reviewed the Registration Statement, the Time of Sale
Prospectus and the 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, the Time of Sale Prospectus and the Final
Prospectus as amended or supplemented were discussed; on the basis of the
information that such counsel gained in the course of her activities
referred to above and as Secretary of the Company and Deputy General
Counsel of AIC, such counsel confirms that the Registration Statement, as
of its effective date, the Time of Sale Prospectus 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 incorporated by reference or included therein or excluded
therefrom, 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, the Time of Sale Prospectus 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 have 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 incorporated by reference or included
15
therein or excluded therefrom or the exhibits to the Registration
Statement, including the Form T-1, and other than information under the
captions "Description of Debt Securities," "Description of Capital Stock,"
"Description of Depositary Shares," "Description of Warrants," "Description
of Stock Purchase Contracts and Stock Purchase Units," "Description of
Trust Preferred Securities," "Description of Preferred Securities
Guarantees" and "Plan of Distribution" in the Basic Prospectus and under
the captions "Description of the Notes" and "Underwriting" contained in the
Time of Sale Prospectus and 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 statements therein
not misleading or that the Time of Sale Prospectus, as of the date hereof,
and the Final Prospectus, as of its date, 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 incorporated by reference or included
therein or excluded therefrom or the exhibits to the Registration
Statement, including the Form T-1, and other than information under the
captions "Description of Debt Securities," "Description of Capital Stock,"
"Description of Depositary Shares," "Description of Warrants," "Description
of Stock Purchase Contracts and Stock Purchase Units," "Description of
Trust Preferred Securities," "Description of Preferred Securities
Guarantees" and "Plan of Distribution" in the Basic Prospectus and under
the captions "Description of the Notes" and "Underwriting" contained in the
Time of Sale Prospectus or 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 statements therein not
misleading or that, as of the Time of Delivery, either the Registration
Statement, the Time of Sale Prospectus 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
incorporated by reference or included therein or excluded therefrom or the
exhibits to the Registration Statement, including the Form T-1, and other
than information under the captions "Description of Debt Securities,"
"Description of Capital Stock," "Description of Depositary Shares,"
"Description of Warrants," "Description of Stock Purchase Contracts and
Stock Purchase Units," "Description of Trust Preferred Securities,"
"Description of Preferred Securities Guarantees" and "Plan of Distribution"
in the Basic Prospectus and under the captions "Description of the Notes"
and "Underwriting" contained in the Time of Sale Prospectus or 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 in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; and she 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 Time of Sale
Prospectus or the Final Prospectus as amended
16
or supplemented or required to be described in the Registration Statement,
the Time of Sale Prospectus 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 Capital Stock," "Description of
Depositary Shares," "Description of Warrants," "Description of Stock
Purchase Contracts and Stock Purchase Units," "Description of Trust
Preferred Securities," "Description of Preferred Securities Guarantees" and
"Plan of Distribution" in the Basic Prospectus and under the captions
"Description of the Notes" and "Underwriting" contained in the Time of Sale
Prospectus or the Final Prospectus as amended or supplemented; and
(xi) On the basis of the information that such counsel gained in the
course of the review referred to in paragraph (x) above and as Secretary of
the Company and Deputy General Counsel of AIC (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 Time of Sale Prospectus or the
Final Prospectus as amended or supplemented (other than the financial
statements and financial and accounting data and related schedules
incorporated by reference or included 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 she 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) The Representatives shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
LLP, counsel for the Underwriters, such opinion or opinions, dated the Time of
Delivery and addressed to the Representatives, with respect to the issuance and
sale of the Securities, the Time of Sale Prospectus or the Final Prospectus as
amended and supplemented and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such counsel such
documents as they request for this purpose of enabling them to pass upon such
matters.
(e) The Company shall have furnished to the Representatives a certificate
of the Company, signed by the Chairman of the Board, Chief Executive Officer,
President, Chief Operating Officer, Chief Financial Officer, Secretary, General
Counsel, Treasurer or Controller of the Company, dated the Time of Delivery, to
the effect that the signatory of such certificate has carefully examined the
Registration Statement, the Time of Sale Prospectus, the Final Prospectus and
amendments and supplements thereto and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Time of Delivery with the
same effect as if made on the
17
Time of Delivery and the Company has complied with all agreements and
satisfied all the conditions on its part to be performed or satisfied at or
prior to the Time of Delivery;
(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the Time of Sale Prospectus or the Final
Prospectus there has occurred no event required to be set forth in an
amendment or supplement to the Registration Statement or Final Prospectus,
and there has been no document required to be filed under the Act and the
rules and regulations thereunder which, upon filing, would be deemed to be
incorporated by reference in the Time of Sale Prospectus or the Final
Prospectus which has not been so filed.
(f) On the date hereof, Deloitte & Touche LLP shall have furnished to the
Representatives a letter, dated the date hereof, to the effect set forth in
Schedule IV hereto. As of the Time of Delivery, Deloitte & Touche LLP shall have
furnished to the Representatives a letter, dated as of the Time of Delivery,
reaffirming, as of such date, all of the statements set forth in Schedule IV
hereto and otherwise in form and substance satisfactory to the Representatives.
(g) Subsequent to the effective date of this Agreement, there shall not
have been any decrease in the rating of any of the Company's debt securities by
any of ▇▇▇▇▇'▇ Investors Service or Standard & Poor's Corporation or any public
notice given of any intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate the direction of the
possible change.
(h) Prior to or at the Time of Delivery, the Company shall have furnished
or shall furnish to the Representatives such additional certificates of officers
of the Company as to such other matters as the Representatives may reasonably
request.
If any of the conditions specified in this Section 7 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be cancelled at,
or at any time prior to, the Time of Delivery by the Representatives. Notice of
such cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 7 shall be delivered
at the office of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel to the Underwriters, at
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at the Time of Delivery.
8. Reimbursement of Underwriters' Expenses. If the sale of the Securities
provided herein is not consummated because any condition to the obligations of
the Underwriters set forth in Section 7 (other than Section 7(d)) hereof is not
satisfied, because of any termination pursuant to Section 12(i) hereof or
because of any refusal, inability or failure by the Company to perform
18
any agreement herein or comply with any provision hereof other than by reason of
a default by any of the Underwriters, the Company will reimburse the
Underwriters severally through ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated on demand for
all reasonable out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities.
9. Covenants of the Underwriters. The Underwriters covenant with the
Company not to take any action that would result in the Company being required
to file with the Commission pursuant to Rule 433(d) a free writing prospectus
prepared by or on behalf of the Underwriters that the Company otherwise would
not have been required to file thereunder. The Underwriters acknowledge and
agree that, except as may be set forth in Schedule V, the Company has not
authorized or approved any "issuer information" (as defined in Rule 433(h) under
the Act) for use in any free writing prospectus prepared by or on behalf of the
Underwriters.
10. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter, the
directors, officers, employees and agents of each Underwriter and each person
who controls any Underwriter, within the meaning of either the Act or the
Exchange Act, against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as: (i) such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement as originally filed or in any amendment thereof, or in
the Basic Prospectus, any Preliminary Final Prospectus, the Time of Sale
Prospectus or the Final Prospectus, any free writing prospectus that the Company
has filed, or is required to file, pursuant to Rule 433(d) under the Act, or in
any amendment thereof or supplement thereto; or (ii) 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.
The Company agrees to reimburse each such indemnified party, as incurred, for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any such case arising
in connection with this Section 10 to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter specifically for inclusion therein,
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 Time of Sale 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, of any free writing prospectus or of the
Final Prospectus as then amended or supplemented, whichever is most recent, in
any case where such delivery (or in lieu thereof the notice referred to in Rule
173(a) under the Act) 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
19
omission of a material fact contained in the Preliminary Final Prospectus which
was corrected in the Final Prospectus, such free writing prospectus or the Final
Prospectus as amended or supplemented. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) Each Underwriter, severally and not jointly, agrees to indemnify and
hold harmless the Company, each of its directors, each of its officers who signs
the Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 10 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 10, notify the indemnifying party in writing of the commencement
thereof; but the failure so to notify the indemnifying party: (i) will not
relieve it from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses; and
(ii) will not, in any event, relieve the indemnifying party from any obligations
to any indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint
counsel of the indemnifying party's choice at the indemnifying party's expense
to represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be responsible
for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below) and to participate in and assume the
defense of the claim associated with such action; provided, however, that such
counsel shall be satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if: (i)
the use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest; (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party; (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action; or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise, or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action), unless such settlement, compromise or consent
(i) includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding and (ii)
20
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) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 10 is unavailable to, or insufficient to hold harmless, an
indemnified party for any reason, the Company and the Underwriters severally
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company
and one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the one
hand, and by the Underwriters, on the other, from the offering of the
Securities; provided, however, that in no case shall any Underwriter (except as
may be provided in any agreement among underwriters relating to the offering of
the Securities) be responsible for any amount in excess of the total price at
which the applicable Securities underwritten by it and distributed to the public
were offered to the public. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the
Underwriters severally shall contribute 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 of the Underwriters, on the other, in connection
with the statements or omissions which resulted in such Losses as well as any
other relevant equitable considerations. Benefits received by the Company shall
be deemed to be equal to the total net proceeds from the offering (before
deducting expenses) received by it, and benefits received by the Underwriters
shall be deemed to be equal to the total underwriting discounts and commissions,
in each case as set forth on the cover page of the Final Prospectus. Relative
fault shall be determined by reference to, among other things: (i) whether any
untrue or any alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information provided by the
Company, on the one hand, or the Underwriters, on the other; (ii) the intent of
the parties and their relative knowledge; (iii) access to information; and (iv)
the opportunity to correct or prevent such untrue statement or omission. The
Company and the Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), 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. For purposes of this Section 10, each person who
controls an Underwriter within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each person who controls
the Company within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
11. Defaulting Underwriters. If any one or more Underwriters shall fail to
purchase and pay for any of the Securities agreed to be purchased by the
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its obligations under this Agreement,
the remaining Underwriters shall be obligated severally to take up and pay for
(in the respective proportions which the amount of Securities set forth opposite
their names on Schedule II hereto bears to the aggregate amount of Securities
set forth
21
opposite the names of all the remaining Underwriters) the Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
however, that in the event that the aggregate amount of Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate amount of Securities set forth on Schedule II
hereto, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Securities, and if
such non-defaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without any liability to any non-defaulting Underwriter
or the Company. In the event of a default by any Underwriter as set forth in
this Section 11, the Time of Delivery shall be postponed for such period, not
exceeding five Business Days, as the Representatives shall determine in order
that the required changes to the Registration Statement, the Time of Sale
Prospectus and the Final Prospectus (including by means of a free writing
prospectus) or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company and any non-defaulting Underwriter for damages
occasioned by its default hereunder.
12. Termination. This Agreement is subject to termination in the absolute
discretion of the Representatives, by notice given to the Company prior to
delivery of and payment for the Securities, if at any time prior to such time
(i) trading in the Company's securities shall have been suspended by the
Commission, (ii) trading in securities generally on the New York Stock Exchange
shall have been suspended or limited or minimum prices shall have been
established on such Exchange, (iii) a banking moratorium shall have been
declared either by Federal or New York State authorities or (iv) there shall
have occurred any outbreak or escalation of hostilities, declaration by the
United States of a national emergency or war, or other calamity or crisis the
effect of which on financial markets is such as to make it, in the sole judgment
of the Representatives, impractical or inadvisable to proceed with the offering
or delivery of the Securities as contemplated by the Time of Sale Prospectus or
the Final Prospectus (exclusive of any supplements thereto).
13. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of the several Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 10 hereof, and will survive the delivery of and payment for the
Securities. The provisions of Section 8 and 10 hereof shall survive the
termination or cancellation of this Agreement.
14. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telefaxed to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: Investment Banking Division (fax no. (▇▇▇) ▇▇▇-▇▇▇▇); with
a copy to ▇.▇. ▇▇▇▇▇▇ Securities Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attn: High Grade Syndicate Desk - 8th Floor (fax no. (▇▇▇) ▇▇▇-▇▇▇▇); if sent to
the Company, will be mailed, delivered or telefaxed to the address of the
Company set forth in the Registration Statement, Attention: Secretary.
22
15. Successors and Assigns. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers, directors, employees, agent and controlling persons referred to in
Section 10 hereof, and no other person will have any right or obligation
hereunder.
16. Time; 'Business Day'. As used herein, the term `business day' shall
mean any day other than a Saturday, Sunday or a legal holiday or a day on which
banking institutions or trust companies are authorized or obligated by law to
close in New York City.
17. Fiduciary Duties. The Company acknowledges that in connection with the
offering of the Securities: (a) the Underwriters have acted at arms length, are
not agents of, and owe no fiduciary duties to, the Company or any other person,
(b) the Underwriters owe the Company only those duties and obligations set forth
in this Agreement and prior written agreements (to the extent not superseded by
this Agreement), if any, and (c) the Underwriters may have interests that differ
from those of the Company. The Company waives to the full extent permitted by
applicable law any claims it may have against the Underwriters arising from an
alleged breach of fiduciary duty in connection with the offering of the
Securities.
18. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
19. Entire Agreement. This Agreement, together with the letter from the
Underwriters to the Company confirming the written information relating to the
Underwriters furnished to the Company by the Underwriters specifically for
inclusion in the documents referred to in Section 10(a), represents the entire
agreement between the Company and the Underwriters with respect to the
preparation of any Preliminary Final Prospectus, the Time of Sale Prospectus,
the Final Prospectus, the conduct of the offering and the purchase and sale of
the Securities.
20. Counterparts. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be deemed to
be an original, but all such counterparts shall together constitute one and the
same instrument.
23
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
THE ALLSTATE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Director
For themselves and the other
Underwriters named in Schedule II
to the foregoing Agreement
SCHEDULE I
Representatives
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
SCHEDULE II
Underwriters Principal Amount of
------------ Securities to be Purchased
--------------------------
▇.▇. ▇▇▇▇▇▇ Securities Inc.......................... $195,325,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated................... $195,325,000
▇▇▇▇▇▇▇, Sachs & Co................................. $58,500,000
▇▇▇▇▇▇ Brothers Inc................................. $58,500,000
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated.. $58,500,000
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc............................ $13,975,000
Banc of America Securities LLC...................... $13,975,000
Citigroup Global Markets Inc........................ $13,975,000
PNC Capital Markets LLC............................. $13,975,000
SunTrust Capital Markets, Inc....................... $13,975,000
▇▇▇▇▇ Fargo Securities LLC.......................... $13,975,000
Total........... $650,000,000
SCHEDULE III
Principal Subsidiaries Jurisdiction Of Incorporation
Allstate Insurance Company Illinois
Allstate Life Insurance Company Illinois
SCHEDULE IV
Pursuant to Section 7(f) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are an independent registered public accounting firm with
respect to the Company and its subsidiaries within the meaning of the Act,
the Exchange Act and the Public Company Accounting Oversight Board and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and financial
statement schedules, 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 Time of Sale
Prospectus, the Final Prospectus or the Registration Statement comply as to
form in all material respects with the applicable accounting requirements
of the Act and the Exchange Act and the related published rules and
regulations thereunder; and, they have performed a review in accordance
with standards established under Statement of Auditing Standards No. 100
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 included or incorporated by reference in the Time of Sale
Prospectus, Final Prospectus, as amended or supplemented, or the
Registration Statement, 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 and annual
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 Time of Sale Prospectus or 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 Time of Sale Prospectus
or 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 Exchange Act and the related published
rules and regulations thereunder and generally accepted accounting
principles, applied on a basis substantially consistent with that of
the
audited financial statements included or incorporated by reference in
the Time of Sale Prospectus or the Final Prospectus;
(B) any other unaudited income statement data and balance sheet
items included or incorporated by reference in the Time of Sale
Prospectus or 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 Time of Sale Prospectus or the Final
Prospectus as amended or supplemented;
(C) the unaudited financial statements which were not included or
incorporated by reference in the Time of Sale Prospectus or 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 Time of Sale Prospectus or 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 Time of Sale Prospectus or the Final
Prospectus as amended or supplemented;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Time of Sale
Prospectus or 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 Exchange 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.
(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 Time
of Sale Prospectus or the Final Prospectus as amended or supplemented,
except in each case for changes, increases or decreases which the Time
of Sale Prospectus or 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 Time of Sale
Prospectus or 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 Time of Sale Prospectus or 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 Time
of Sale Prospectus or 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.
SCHEDULE V
Free Writing Prospectuses
Filed Pursuant to Rule 433
Registration No. 333-108253
The Allstate Corporation
5.95% SENIOR NOTES DUE 2036
FINAL TERM SHEET
----------------
Dated March 21, 2006
Issuer: The Allstate Corporation
Title of Securities: 5.95% Senior Notes due 2036
Note Type: Senior Unsecured
Ratings: A1/A+ (Stable / Negative Outlook)
Trade Date: ▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ Date (T+3): ▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇ Date: April 1, 2036
Aggregate Principal Amount Offered: $650,000,000
Price to Public (Issue Price): 99.984%, plus accrued interest, if any,
from March 24, 2006
Gross Spread: 0.875%
All-in Price: 99.109%
Net Proceeds: General corporate purposes, including to
facilitate the repayment of a portion of
the Issuer's 5.375% Senior Notes due 2006
at their scheduled maturity on December 1,
2006.
Benchmark: UST 5.375% due February 15, 2031
Treasury Yield: 4.851%
Spread to Benchmark: 110 basis points
Re-Offer Yield: 5.951%
Indenture: Indenture, dated as of December 16, 1997,
as amended by the Third Supplemental
Indenture, dated as of July 23, 1999, and
the Sixth Supplemental Indenture, dated as
of June 12, 2000, between the Issuer and
U.S. Bank National Association (as
successor to State Street Bank and Trust
Company), as trustee, as described and
referred to as the Indenture for Senior
Debt Securities in the base prospectus
dated August 27, 2003 included in the
Registration Statement relating to the
Notes on file with the Securities and
Exchange Commission, as
supplemented by the Thirteenth
Supplemental Indenture, to be dated
as of March 24, 2006.
Interest Rate: 5.95%
Interest Payment Dates: April 1 and October 1, commencing October
1, 2006
Business Day: Any day, other than a Saturday or Sunday,
on which banks in the City of New York and
Boston, Massachusetts are not required by
law to close.
Day Count: Actual number of days elapsed in a 360-day
year of twelve 30-day months.
Record Dates: March 15 and September 15
Denominations: $2,000 initial and integral multiples of $1,000
Redemption:
Make-Whole Call: The Issuer may redeem the Notes, in whole
or in part, at any time at a redemption
price equal to the greater of (i) 100% of
the principal amount of Notes to be
redeemed or (ii) an amount, as determined
by an independent investment banker, equal
to the sum of the present values of the
remaining scheduled payments of principal
of and interest on the Notes to be
redeemed (not including any portion of
such payments of interest accrued to the
date of redemption) discounted to the
redemption date on a semiannual basis
(assuming a 360-day year consisting of
twelve 30-day months) at the adjusted
treasury rate, plus 20 basis points, plus,
in either of the above cases, accrued and
unpaid interest thereon to the redemption
date.
Listing: None
Book-entry Issuance: The Notes will be represented by one or
more global notes registered in the name
of a nominee of The Depository Trust
Company.
Bookrunners (30.05% each): ▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Senior Co-Managers (9.0% each): ▇▇▇▇▇▇▇ Sachs
Lehman Brothers
Merrill ▇▇▇▇▇
Co-Managers (2.15% each): ▇.▇. ▇▇▇▇▇▇▇
Bank of America
Citigroup
PNC
SunTrust
▇▇▇▇▇ Fargo
Underwriting: The underwriting agreement provides that
the underwriters are obligated to purchase
all of the Notes if any are purchased.
The underwriting agreement may be
terminated by the underwriters prior to
issuance of the Notes in certain
circumstances.
2
The Issuer has agreed to
indemnify the underwriters
against certain liabilities,
including liabilities under
the Securities Act of 1933,
as amended.
If the Notes are not sold at
the initial offering price,
the underwriters may change
the offering price and other
selling terms.
CUSIP: 020002 AT 8
The issuer has filed a registration statement (including a prospectus) with the
Securities and Exchange Commission (the "SEC") for the offering to which this
communication relates. Before you invest, you should read the prospectus in that
registration statement and other documents the issuer has filed with the SEC for
more complete information about the issuer and this offering. You may obtain
these documents for free by visiting ▇▇▇▇▇ on the SEC website at ▇▇▇.▇▇▇.▇▇▇.
Alternatively, the issuer, any underwriter or any dealer participating in the
offering will arrange to send you the prospectus if you request it by calling
▇.▇. ▇▇▇▇▇▇ Securities Inc. collect at ▇-▇▇▇-▇▇▇-▇▇▇▇ or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated toll-free at ▇-▇▇▇-▇▇▇-▇▇▇▇.
3