Exhibit 1.1
Travelers Property Casualty Corp.
168,000,000 Shares a/
Class A Common Stock
($0.01 par value)
U.S. Underwriting Agreement
New York, New York
, 2002
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
Credit Suisse First Boston Corporation
▇▇▇▇▇▇▇, Sachs & Co.
▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
As Representatives of the several U.S. Underwriters
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Travelers Property Casualty Corp., a corporation organized under the
laws of Connecticut (the "Company"), proposes to sell to the several U.S.
Underwriters named in Schedule I hereto (the "U.S. Underwriters"), for whom the
U.S. Representatives are acting as representatives, 168,000,000 shares of Class
A Common Stock, $0.01 par value per share ("Common Stock"), of the Company (said
shares to be issued and sold by the Company being hereinafter called the "U.S.
Underwritten Securities"). The Company also proposes to grant to the U.S.
Underwriters an option to purchase up to 16,800,000 additional shares of Common
Stock to cover over-allotments (the "U.S. Option Securities" and together with
the U.S. Underwritten Securities, the "U.S. Securities"). It is understood that
the Company is concurrently entering into an International Underwriting
Agreement dated the date hereof (the "International Underwriting Agreement")
with the several underwriters named in Schedule I thereto (the "International
Underwriters") providing for the sale by the Company of an aggregate of
42,000,000 shares of Common Stock (said shares to be sold by the Company
pursuant to the International Underwriting Agreement being hereinafter called
the "International Underwritten Securities") and providing for the grant to the
International Underwriters of an option to purchase from the Company up to
4,200,000 additional shares of Common Stock to cover over-allotments (the
"International Option Securities" and together with the International
Underwritten Securities, the "International Securities" and the U.S. Securities
and the International Securities together, the
--------
a/ Plus an option to purchase from the Company, up to 16,800,000
additional U.S. Securities to cover over-allotments.
"Securities"). It is further understood and agreed that the International
Underwriters and the U.S. Underwriters have entered into an Agreement Between
U.S. Underwriters and International Underwriters dated the date hereof (the
"Agreement Between U.S. Underwriters and International Underwriters"), pursuant
to which, among other things, the International Underwriters may purchase from
the U.S. Underwriters a portion of the U.S. Securities to be sold pursuant to
this U.S. Underwriting Agreement and the U.S. Underwriters may purchase from the
International Underwriters a portion of the International Securities to be sold
pursuant to the International Underwriting Agreement. To the extent there are no
additional U.S. Underwriters listed on Schedule I other than you, the term U.S.
Representatives as used in this U.S. Underwriting Agreement shall mean you, as
U.S. Underwriters, and the terms U.S. Representatives and U.S. Underwriters
shall mean either the singular or plural as the context requires. The use of the
neuter in this U.S. Underwriting Agreement shall include the feminine and
masculine wherever appropriate. Certain terms used in the U.S. Underwriting
Agreement are defined in Section 17 hereof.
As part of the offering contemplated by this U.S. Underwriting
Agreement, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. has agreed to reserve out of the U.S.
Securities set forth opposite its name on the Schedule I to this U.S.
Underwriting Agreement, up to shares, for sale to the Company's employees,
officers and directors and to independent agents that sell the Company's
products (collectively, "Participants"), as set forth in the Prospectus under
the heading "Underwriting" (the "Directed Share Program"). The U.S. Securities
to be sold by ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. pursuant to the Directed Share Program
(the "Directed Shares") will be sold by ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. pursuant to
this U.S. Underwriting Agreement at a price of $ per share. Any Directed Shares
not orally confirmed for purchase by any Participants by the end of the business
day immediately following the date on which this Agreement is executed will be
offered to the public as set forth in the Prospectuses.
1. Representations and Warranties. (a) The Company
represents and warrants to, and agrees with, each U.S. Underwriter as set forth
below in this Section 1(a).
(i) The Company has prepared and filed with the
Commission a registration statement (file number 333-82388) on Form
S-1, including related preliminary prospectuses, for registration under
the Act of the offering and sale of the Securities. The Company may
have filed one or more amendments thereto, including related
preliminary prospectuses, each of which has previously been furnished
to you. The Company will next file with the Commission either (1) prior
to the Effective Date of such registration statement, a further
amendment to such registration statement (including the form of final
prospectuses) or (2) after the Effective Date of such registration
statement, final prospectuses in accordance with Rules 430A and 424(b).
In the case of clause (2), the Company has included in such
registration statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the Act and
the rules thereunder to be included in such registration statement and
the Prospectuses. As filed, such amendment and form of final
prospectuses, or such final prospectuses, shall contain all Rule 430A
Information, together with all other such required information, and,
except to the extent the U.S. Representatives shall agree in writing to
a modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the
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extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that
contained in the latest Preliminary Prospectuses) as the Company has
advised you, prior to the Execution Time, will be included or made
therein.
It is understood that two forms of prospectuses are to be used
in connection with the offering and sale of the Securities: one form of
prospectus relating to the U.S. Securities, which are to be offered and
sold to United States and Canadian Persons, and one form of prospectus
relating to the International Securities, which are to be offered and
sold to persons other than United States and Canadian Persons. The U.S.
Prospectus and the International Prospectus are identical except for
the outside front cover page, the discussion under the headings
"Underwriting" and the outside back cover page.
(ii) On the Effective Date, the Registration Statement did
or will, and when the Prospectuses are first filed (if required) in
accordance with Rule 424(b) and on the Closing Date (as defined in the
U.S. Underwriting Agreement) and on any date on which Option Securities
are purchased, if such date is not the Closing Date (a "settlement
date"), each Prospectus (and any supplements thereto) will, comply in
all material respects with the applicable requirements of the Act and
the rules thereunder. On the Effective Date and at the Execution Time,
the Registration Statement did not or will not 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; and, on the Effective Date, each
Prospectus, if not filed pursuant to Rule 424(b), will not, and on the
date of any filing pursuant to Rule 424(b) and on the Closing Date and
any settlement date, each Prospectus (together with any supplement
thereto) will not, include any untrue statement of a material fact or
omit 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; provided, however, that the Company makes no
representations or warranties as to the information contained in or
omitted from the Registration Statement or the Prospectuses (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter
through the Representatives specifically for inclusion in the
Registration Statement or the Prospectuses (or any supplement thereto).
(iii) Each of the Company and its subsidiaries has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction in which it is chartered or
organized with full 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 Prospectuses, and is duly qualified to do business
as a foreign corporation and is in good standing under the laws of each
jurisdiction which requires such qualification, except where the
failure to be so qualified in any jurisdiction or to have such powers
or authorities would not have a material adverse effect on the
condition (financial or otherwise), earnings, business or properties of
the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business (a
"Material Adverse Effect").
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(iv) All the outstanding shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and
issued and are fully paid and nonassessable, and, except as otherwise
set forth in the Prospectuses, all outstanding shares of capital stock
of such subsidiaries are owned by the Company either directly or
through wholly owned subsidiaries free and clear of any perfected
security interest or any other security interests, claims, liens or
encumbrances, except where the failure to be so authorized and issued,
fully paid and nonassessable, owned by the Company or free and clear of
any such interests, claims, liens or encumbrances would not have a
Material Adverse Effect.
(v) Without limitation of the foregoing, each of the
subsidiaries listed on Annex A attached hereto (the "Insurance
Subsidiaries") is duly organized and licensed as an insurance company
in the jurisdiction of incorporation identified in Annex A hereto, is
duly licensed or authorized as an insurer or reinsurer in each other
jurisdiction where it is required to be so licensed or authorized to
conduct its business as described in the Prospectuses, except where the
failure (individually or in the aggregate) to be so licensed or
authorized in any such jurisdiction would not have a Material Adverse
Effect; each of the Company and each Insurance Subsidiary has made all
required filings under applicable insurance company statutes and has
filed all notices, reports, documents or other information required to
be filed thereunder, except where the failure to have such
authorizations, approvals, orders, consents, licenses, certificates,
permits, registrations or qualifications (individually or in the
aggregate) would not have a Material Adverse Effect, except as set
forth in or contemplated in the Prospectuses (exclusive of any
supplement thereto); and none of the Company or any Insurance
Subsidiary has received any notification from any insurance regulatory
authority to the effect that any additional authorization, approval,
order, consent, license, certificate, permit, registration or
qualification from any insurance regulatory authority is needed to be
obtained by any of the Company or any subsidiary other than in any case
where the failure to acquire such additional authorization, approval,
order, consent, license, certificate, permit, registration or
qualification (individually or in the aggregate) would not have a
Material Adverse Effect.
(vi) The Company's authorized equity capitalization is as
set forth in the Prospectuses; the capital stock of the Company
conforms in all material respects to the description thereof contained
in the Prospectuses; the outstanding shares of Common Stock have been
duly and validly authorized and issued and are fully paid and
nonassessable; the Securities have been duly and validly authorized,
and, when issued and delivered to and paid for by the Underwriters
pursuant to this U.S. Underwriting Agreement and the International
Underwriting Agreement, will be fully paid and nonassessable; the
Securities are duly listed, and admitted and authorized for trading,
subject to official notice of issuance and evidence of satisfactory
distribution, on the New York Stock Exchange; the certificates for the
Securities comply with the requirements of Connecticut law and the
rules of the New York Stock Exchange; the holders of outstanding shares
of capital stock of the Company are not entitled to preemptive or other
rights to subscribe for the Securities, except as set forth in the
Exchange Agreement, dated as of , between Citigroup Inc. ("Citigroup")
and the Company; and, except as set
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forth in the Prospectuses, no options, warrants or other rights to
purchase, agreements or other obligations to issue, or rights to
convert any obligations into or exchange any securities for, shares of
capital stock of or ownership interests in the Company are outstanding.
(vii) There is no franchise, contract or other document of
a character required to be described in the Registration Statement or
the Prospectuses, or to be filed as an exhibit thereto, which is not
described or filed as required; and the statements in the Prospectuses
under the headings "Management's Discussion and Analysis of Financial
Condition and Results of Operations -- Environmental Claims,"
"Management's Discussion and Analysis of Financial Condition and
Results of Operations -- Asbestos Claims and Litigation," "Management's
Discussion and Analysis of Financial Condition and Results of
Operations -- Cumulative Injury Other Than Asbestos (▇▇▇▇▇) Claims,"
"Business -- Environmental, Asbestos and Other Cumulative Injury
Claims" and "Business -- Regulation," "Business -- Legal Proceedings"
fairly summarize the matters therein described.
(viii) This U.S. Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(ix) Each of the agreements listed on Annex B attached
hereto has been duly authorized, executed and delivered by the Company
and constitutes a valid and binding obligation of the Company
enforceable in accordance with its terms, except to the extent that
enforcement thereof may be limited by (A) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (B) general
principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity).
(x) The Company is not and, after giving effect to the
offering and sale of the Securities and the application of the proceeds
thereof as described in the Prospectuses, will not be an "investment
company" as defined in the Investment Company Act of 1940, as amended.
(xi) No consent, approval, authorization, filing with or
order of any court or governmental agency or body is required in
connection with the transactions contemplated in this U.S. Underwriting
Agreement or the International Underwriting Agreement, except such as
have been obtained under the Act and such as may be required under the
blue sky laws or securities laws of any state or foreign jurisdiction
in connection with the purchase and distribution of the Securities by
the Underwriters in the manner contemplated herein and in the
Prospectuses, or except where the failure to obtain such consent,
approval, authorization, filing or order would not have a material
adverse effect on the issuance and sale of the Securities or the
consummation of any of the other transactions contemplated in this U.S.
Underwriting Agreement or the International Underwriting Agreement.
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(xii) Neither the issue and sale of the Securities nor the
consummation of any other of the transactions contemplated in this U.S.
Underwriting Agreement or the International Underwriting Agreement nor
the fulfillment of the terms of this U.S. Underwriting Agreement or the
International Underwriting Agreement will conflict with, or result in a
breach or violation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its subsidiaries
pursuant to, (1) the charter or by-laws of the Company or any of its
subsidiaries, (2) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which the
Company or any of its subsidiaries is a party or bound or to which its
or their property is subject, or (3) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or any
of its subsidiaries (including the requirements of the insurance laws
and regulations of its state of incorporation and the insurance laws
and regulations of other applicable jurisdictions) of any court,
regulatory body, administrative agency, governmental body, arbitrator
or other authority having jurisdiction over the Company or any of its
subsidiaries or any of its or their properties, except, in the case of
clauses (2) and (3) above, for such conflict, breach or violation that
would not have a material adverse effect on the issuance and sale of
the Securities or the consummation of any other of the transactions
contemplated in this U.S. Underwriting Agreement or the International
Underwriting Agreement.
(xiii) No holders of securities of the Company have rights
to the registration of such securities under the Registration
Statement.
(xiv) The consolidated historical financial statements and
schedules of the Company and its consolidated subsidiaries included in
the Prospectuses and the Registration Statement present fairly in all
material respects the financial condition, results of operations and
cash flows of the Company as of the dates and for the periods
indicated, comply as to form with the applicable accounting
requirements of the Act and have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved (except as otherwise noted therein).
The selected financial data set forth under the caption "Selected
Historical Financial Information" in the Prospectuses and Registration
Statement fairly present, on the basis stated in the Prospectuses and
the Registration Statement, the information included therein.
(xv) The statutory financial statements of the Insurance
Subsidiaries, from which certain ratios and other statistical data
included in the Registration Statement and the Prospectuses (and any
amendment or supplement thereto) have been derived, have been prepared
for each relevant period in conformity with accounting practices
prescribed or permitted by the National Association of Insurance
Commissioners and the insurance departments of the states of domicile
of such subsidiaries, in effect at such time of preparation, except as
otherwise stated therein.
(xvi) There are no legal or governmental proceedings
(including, without limitation, actions or proceedings by any insurance
regulatory agency or body) pending
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or, to the knowledge of the Company, threatened against the Company or
any of its subsidiaries, or to which the Company or any of its
subsidiaries is a party, or to which any of their respective properties
is subject, that (1) could reasonably be expected to have a material
adverse effect on the performance of this U.S. Underwriting Agreement
or the International Underwriting Agreement or the consummation of any
of the transactions contemplated by this U.S. Underwriting Agreement or
the International Underwriting Agreement or (2) are required to be
described in the Registration Statement or the Prospectuses (exclusive
of any supplement thereto) but are not described as required.
(xvii) Except as disclosed in the Prospectuses, (1) all
reinsurance treaties, contracts, agreements and arrangements to which
the Company or any of the Insurance Subsidiaries is a party and as to
which any of them reported recoverables, premiums due or other amounts
in its most recent statutory financial statements are in full force and
effect, except where the failure of such treaties, contracts,
agreements and arrangements to be in full force and effect would not
have a Material Adverse Effect, and none of the Company or any of the
Insurance Subsidiaries is in violation of, or in default in the
performance, observance or fulfillment of, any material obligation,
agreement, covenant or condition contained therein, which violation or
default would, singly or in the aggregate, have a Material Adverse
Effect and (2) neither the Company nor any of the Insurance
Subsidiaries has received any notice from any other party to any
reinsurance treaty, contract, agreement or arrangement that such other
party intends not to perform such treaty, contract, agreement or
arrangement in any material respect, and the Company and the Insurance
Subsidiaries have no knowledge that any of the other parties to such
treaties, contracts, agreements or arrangements will be unable to
perform its obligations under such treaty, contract, agreement or
arrangement in any material respect, except to the extent (A) the
Company or the Insurance Subsidiaries have established reserves in
their financial statements which they deem adequate for potential
uncollectible reinsurance or (B) such nonperformance would not have a
Material Adverse Effect.
(xviii) To the best knowledge of the Company, no change in
any insurance laws or regulations is pending which could reasonably be
expected to be adopted and if adopted, would have, individually or in
the aggregate with all such changes, a Material Adverse Effect, except
as set forth in or contemplated in the Prospectuses (exclusive of any
supplement thereto).
(xix) Neither the Company nor any subsidiary is in
violation or default of (1) any provision of its charter or by-laws,
(2) the terms of any indenture, contract, lease, mortgage, deed of
trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which it is a party or bound or to
which its property is subject, or (3) any statute, law, rule,
regulation, judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or such subsidiary (including the
requirements of the insurance laws and regulations of its state of
incorporation and the insurance laws and regulations of other
applicable jurisdictions) or any of its properties, as applicable,
except, in the case of each of clauses (2) or (3) above, for such
violation or default that would not have a Material Adverse Effect.
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(xx) KPMG LLP, who have certified certain financial
statements of the Company and its consolidated subsidiaries and
delivered their report with respect to the audited consolidated
financial statements and schedules included in the Prospectuses, are
independent public accountants with respect to the Company within the
meaning of the Act and the applicable published rules and regulations
thereunder.
(xxi) There are no transfer taxes or other similar fees or
charges under federal law or the laws of any state, or any political
subdivision thereof, required to be paid in connection with the
execution and delivery of this Agreement or the issuance by the Company
or sale by the Company of the Securities.
(xxii) The Company has filed all foreign, federal, state and
local tax returns that are required to be filed or has requested
extensions thereof (except in any case in which the failure so to file
would not have a Material Adverse Effect), except as set forth in or
contemplated in the Prospectuses (exclusive of any supplement thereto),
and has paid all taxes required to be paid by it and any other
assessment, fine or penalty levied against it, to the extent that any
of the foregoing is due and payable (except for any such tax,
assessment, fine or penalty that is currently being contested in good
faith or as would not have a Material Adverse Effect), except as set
forth in or contemplated in the Prospectuses (exclusive of any
supplement thereto).
(xxiii) No labor problem or dispute with the employees of the
Company or any of its subsidiaries exists or is threatened or imminent,
and the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its or its subsidiaries'
principal suppliers, contractors or customers, that could have a
Material Adverse Effect, except as set forth in or contemplated in the
Prospectuses (exclusive of any supplement thereto).
(xxiv) The Company and its subsidiaries possess all
licenses, certificates, permits and other authorizations issued by the
appropriate federal, state or foreign regulatory authorities (including
insurance departments) necessary to conduct their respective
businesses, and no event or events have occurred which would result in
the impairment, modification, termination or revocation of any such
license, certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a Material Adverse Effect, except as set forth in
or contemplated in the Prospectuses (exclusive of any supplement
thereto).
(xxv) The Company and each of its subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurance that (1) transactions are executed in accordance with
management's general or specific authorizations; (2) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (3) access to assets is permitted only
in accordance with management's general or specific authorization; and
(4) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
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(xxvi) The Company has not taken, directly or indirectly,
any action that has constituted or that was designed to or might
reasonably be expected to cause or result in, under the Exchange Act or
otherwise, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities.
(xxvii) Each of the Company and its subsidiaries has
fulfilled its obligations, if any, under the minimum funding standards
of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Employee Retirement Income Security
Act of 1974 ("ERISA") and the regulations and published interpretations
thereunder with respect to each "plan" (as defined in Section 3(3) of
ERISA and such regulations and published interpretations) in which
employees of the Company and its subsidiaries are eligible to
participate, except where the failure to fulfill such obligations would
not have a Material Adverse Effect, and each such plan is in compliance
in all material respects with the presently applicable provisions of
ERISA and such regulations and published interpretations. The Company
and its subsidiaries have not incurred any unpaid liability to the
Pension Benefit Guaranty Corporation (other than for the payment of
premiums in the ordinary course) or to any such plan under Title IV of
ERISA, except where the failure to fulfill such obligations or any such
noncompliance would not have a Material Adverse Effect.
(xxviii) The Company and its subsidiaries own, possess,
license or have other rights to use, on reasonable terms, all patents,
patent applications, trade and service marks, trade and service ▇▇▇▇
registrations, trade names, copyrights, licenses, inventions, trade
secrets, technology, know-how and other intellectual property
(collectively, the "Intellectual Property") necessary for the conduct
of the Company's business as now conducted, except where the failure to
so own, possess, license or have other rights to use such Intellectual
Property would not have a Material Adverse Effect, or as proposed in
the Prospectuses to be conducted, and the Company is not aware of any
material claim to the contrary or any material challenge by any other
person to the rights of the Company or its subsidiaries with respect to
the foregoing, except as set forth or contemplated in the Prospectuses
(exclusive of any supplement thereto).
(xxix) Neither any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act)
nor A.M. Best Co. has (A) taken any action to, or to the Company's
knowledge, threatened to decrease the rating of any debt securities of
the Company or any of its subsidiaries or the financial strength or the
claims paying ability of the Company, any of its subsidiaries or any
intracompany insurance pool to which any Insurance Subsidiary of the
Company belongs or (B) given any notice 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.
(xxx) The Company has not offered, or caused the U.S.
Underwriters to offer, U.S. Securities to any person pursuant to the
Directed Share Program with the specific intent to unlawfully influence
(i) a customer or supplier of the Company to alter the customer's or
supplier's level or type of business with the Company, or (ii) a trade
journalist or publication to write or publish favorable information
about the Company or its products.
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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.
(b) Citigroup represents and warrants to, and agrees
with, each U.S. Underwriter as set forth below in this Section 1(b).
(i) This U.S. Underwriting Agreement has been duly
authorized, executed and delivered by Citigroup.
(ii) Each of the agreements listed on Annex B attached
hereto has been duly authorized, executed and delivered by Citigroup
and constitutes a valid and binding obligation of Citigroup enforceable
in accordance with its terms, except to the extent that enforcement
thereof may be limited by (A) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally and (B) general principles of equity
(regardless of whether enforceability is considered in a proceeding at
law or in equity).
(iii) Citigroup has not taken, directly or indirectly, any
action that has constituted or that was designed to or might reasonably
be expected to cause or result in, under the Exchange Act or otherwise,
the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(iv) Neither the issue and sale of the Securities nor the
consummation of any other of the transactions herein contemplated nor
the fulfillment of the terms hereof will conflict with, or result in a
breach or violation or imposition of any lien, charge or encumbrance
upon any property or assets of Citigroup or any of its subsidiaries
pursuant to, (1) the charter or by-laws of Citigroup or any of its
subsidiaries, (2) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which
Citigroup or any of its subsidiaries is a party or bound or to which
its or their property is subject, or (3) any statute, law, rule,
regulation, judgment, order or decree applicable to Citigroup or any of
its subsidiaries (including 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
subsidiary) of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction
over Citigroup or any of its subsidiaries or any of its or their
properties, except in the case of clauses (2) and (3) above, for such
conflict, breach or violation that would not have a material adverse
effect on the issuance and sale of the Securities or the consummation
of any other of the transactions contemplated in this U.S. Underwriting
Agreement or the International Underwriting Agreement.
(v) In respect of any statements in or omissions from the
Registration Statement or the Prospectuses or any supplements thereto
made in reliance upon and in conformity with information furnished in
writing to the Company by Citigroup specifically for use in
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connection with the preparation thereof, Citigroup hereby makes the
same representations and warranties to each U.S. Underwriter as the
Company makes to such U.S. Underwriter under the second sentence of
paragraph (a)(ii) of this Section.
Any certificate signed by any officer of Citigroup 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 Citigroup, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. (a) Subject to the terms and
conditions and in reliance upon the representations and warranties set forth in
this U.S. Underwriting Agreement, the Company agrees to sell to each U.S.
Underwriter, and each U.S. Underwriter agrees, severally and not jointly, to
purchase from the Company, at a purchase price of $ per share, the amount of the
U.S. Underwritten Securities set forth opposite such U.S. Underwriter's name in
Schedule I to this U.S. Underwriting Agreement.
(b) Subject to the terms and conditions and in reliance
upon the representations and warranties set forth in this U.S. Underwriting
Agreement, the Company hereby grants an option to the several U.S. Underwriters
to purchase, severally and not jointly, up to 16,800,000 U.S. Option Securities
at the same purchase price per share as the U.S. Underwriters shall pay for the
U.S. Underwritten Securities. Said option may be exercised only to cover
over-allotments in the sale of the U.S. Underwritten Securities by the U.S.
Underwriters. Said option may be exercised in whole or in part at any time on or
before the 30th day after the date of the U.S. Prospectus upon written or
telegraphic notice by the U.S. Representatives to the Company setting forth the
number of shares of the U.S. Option Securities as to which the several U.S.
Underwriters are exercising the option and the settlement date. The number of
U.S. Option Securities to be purchased by each U.S. Underwriter shall be the
same percentage of the total number of shares of the U.S. Option Securities to
be purchased by the several U.S. Underwriters as such U.S. Underwriter is
purchasing of the U.S. Underwritten Securities, subject to such adjustments as
you in your absolute discretion shall make to eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the
U.S. Underwritten Securities and the U.S. Option Securities (if the option
provided for in Section 2(b) hereof shall have been exercised on or before the
third Business Day prior to the Closing Date) shall be made at 10:00 AM, New
York City time, on , 2002, 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 among the U.S.
Representatives, the International Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for the
U.S. Securities being herein called the "Closing Date"). Delivery of the U.S.
Securities shall be made to the U.S. Representatives for the respective accounts
of the several U.S. Underwriters against payment by the several U.S.
Underwriters through the U.S. 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 U.S. Underwritten
Securities and the U.S. Option Securities shall be made through the facilities
of The Depository Trust Company unless the U.S. Representatives shall otherwise
instruct.
11
If the option provided for in Section 2(b) hereof is exercised
after the third Business Day prior to the Closing Date, the Company will deliver
the U.S. Option Securities (at the expense of the Company) to the U.S.
Representatives, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ the date
specified by the U.S. Representatives (which shall be within three Business Days
after exercise of said option) for the respective accounts of the several U.S.
Underwriters, against payment by the several U.S. Underwriters through the U.S.
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. If settlement for the U.S. Option Securities occurs after the
Closing Date, the Company will deliver to the U.S. Representatives on the
settlement date for the U.S. Option Securities, and the obligation of the U.S.
Underwriters to purchase the U.S. Option Securities shall be conditioned upon
receipt of, supplemental opinions, certificates and letters confirming as of
such date the opinions, certificates and letters delivered on the Closing Date
pursuant to Section 6 hereof.
It is understood and agreed that the Closing Date shall occur
simultaneously with the "Closing Date" under the International Underwriting
Agreement, and each settlement date, if any, shall occur simultaneously with the
related "settlement date" under the International Underwriting Agreement.
4. Offering by Underwriters. It is understood that the
several U.S. Underwriters propose to offer the Securities for sale to the public
as set forth in the U.S. Prospectus.
5. Agreements. (a) The Company agrees with the several
U.S. Underwriters that:
(i) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment of
the Registration Statement or supplement to the Prospectuses or any
Rule 462(b) Registration Statement unless the Company has furnished you
a copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object.
Subject to the foregoing sentence, if the Registration Statement has
become or becomes effective pursuant to Rule 430A, or filing of the
Prospectuses is otherwise required under Rule 424(b), the Company will
cause the Prospectuses, properly completed, and any supplement thereto
to be filed with the Commission pursuant to the applicable paragraph of
Rule 424(b) within the time period prescribed and will provide evidence
satisfactory to the U.S. Representatives of such timely filing. The
Company will promptly advise the U.S. Representatives (A) when the
Registration Statement, if not effective at the Execution Time, shall
have become effective, (B) when the Prospectuses, and any supplement
thereto, shall have been filed (if required) with the Commission
pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement
shall have been filed with the Commission, (C) when, prior to
termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, (D)
of any request by the Commission or its staff for any amendment of the
Registration Statement, or any
12
Rule 462(b) Registration Statement, or for any supplement to the
Prospectuses or for any additional information, (E) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (F) of the receipt by the Company of
any notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the institution or
threatening of any proceeding for such purpose. The Company will use
its best efforts to prevent the issuance of any such stop order or the
suspension of any such qualification and, if issued, to obtain as soon
as possible the withdrawal thereof.
(ii) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which either of the Prospectuses as then supplemented
would include any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein in the light
of the circumstances under which they were made not misleading, or if
it shall be necessary to amend the Registration Statement or supplement
either of the Prospectuses to comply with the Act or the rules
thereunder, the Company promptly will (A) notify the U.S.
Representatives of any such event, (B) prepare and file with the
Commission, subject to the second sentence of subparagraph (a)(i) of
this Section 5, an amendment or supplement which will correct such
statement or omission or effect such compliance and (C) supply any
supplemented Prospectuses to you in such quantities as you may
reasonably request.
(iii) As soon as practicable, the Company will make
generally available to its security holders and to the U.S.
Representatives an earnings statement or statements of the Company and
its subsidiaries which will satisfy the provisions of Section 11(a) of
the Act and Rule 158 under the Act.
(iv) The Company will furnish to the U.S. Representatives
and counsel for the U.S. Underwriters signed copies of the Registration
Statement (including exhibits thereto) and to each other U.S.
Underwriter a copy of the Registration Statement (without exhibits
thereto) and, so long as delivery of a prospectus by a U.S. Underwriter
or dealer may be required by the Act, as many copies of each U.S.
Preliminary Prospectus and the U.S. Prospectus and any supplement
thereto as the U.S. Representatives may reasonably request.
(v) The Company will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such
jurisdictions as the U.S. Representatives may designate and will
maintain such qualifications in effect so long as required for the
distribution of the U.S. Securities; provided that in no event shall
the Company be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action that would
subject it to service of process in suits, other than those arising out
of the offering or sale of the Securities, or taxation in any
jurisdiction where it is not now so subject.
13
(vi) The Company will not, without the prior written
consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., offer, sell, contract to sell,
pledge, or otherwise dispose of (or enter into any transaction which is
designed to, or might reasonably be expected to, result in the
disposition of (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company or any
affiliate of the Company or any person in privity with the Company or
any affiliate of the Company), directly or indirectly, including the
filing (or participation in the filing) of a registration statement
with the Commission in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position
within the meaning of Section 16 of the Exchange Act with respect to,
any other shares of Common Stock or shares of the Company's Class B
Common Stock ("Class B Common Stock") or any securities convertible
into, or exercisable or exchangeable for, shares of Common Stock or
shares of Class B Common Stock; or publicly announce an intention to
effect any such transaction, for a period of 180 days after the date of
the U.S. Underwriting Agreement, provided, however, that (A) the
Company may issue and sell its % Junior Subordinated Convertible Notes
(the "Notes") in the concurrent offering of the Notes contemplated by
the Prospectuses, (B) the Company may issue shares of Common Stock upon
conversion of the Notes, (C) the Company may grant options to purchase
shares of Common Stock or Class B Common Stock, (D) the Company may
issue shares of Common Stock or Class B Common Stock upon the
conversion of securities or the exercise of warrants outstanding at the
Execution Time or upon the exercise of options under its stock option
plans, (E) the Company may issue restricted shares of Common Stock or
Class B Common Stock pursuant to the Company's 2002 stock incentive
plan, (F) the Company may issue or sell shares of Common Stock or Class
B Common Stock in connection with an acquisition or business
combination, and (G) the Company may issue shares of Common Stock or
Class B Common Stock in connection with the transactions contemplated
under the heading "Summary -- Our Corporate Reorganization" in the
Prospectuses.
(vii) The Company will not take, directly or indirectly,
any action designed to or which has constituted or which might
reasonably be expected to cause or result, under the Exchange Act or
otherwise, in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities.
(viii) The Company agrees to pay the costs and expenses
relating to the following matters: (A) the preparation, printing or
reproduction and filing with the Commission of the Registration
Statement (including financial statements and exhibits thereto), each
Preliminary Prospectus, each Prospectus, and each amendment or
supplement to any of them; (B) the printing (or reproduction) and
delivery (including postage, air freight charges and charges for
counting and packaging) of such copies of the Registration Statement,
each Preliminary Prospectus, each Prospectus, and all amendments or
supplements to any of them, as may, in each case, be reasonably
requested for use in connection with the offering and sale of the
Securities; (C) the preparation, printing, authentication, issuance and
delivery of certificates for the Securities, including any stamp or
transfer taxes in connection with the original issuance and sale of the
Securities; (D) the printing (or reproduction) and delivery of this
U.S. Underwriting Agreement and
14
the International Underwriting Agreement, any blue sky memorandum and
all other agreements or documents printed (or reproduced) and delivered
in connection with the offering of the Securities; (E) the registration
of the Securities under the Exchange Act and the listing of the
Securities on the New York Stock Exchange; (F) any registration or
qualification of the Securities for offer and sale under the securities
or blue sky laws of the several states (including filing fees and the
reasonable fees and expenses of counsel for the Underwriters relating
to such registration and qualification); (G) any filings required to be
made with the National Association of Securities Dealers, Inc.
(including filing fees and the reasonable fees and expenses of counsel
for the Underwriters relating to such filings); (H) the transportation
and other expenses incurred by or on behalf of Company representatives
in connection with presentations to prospective purchasers of the
Securities; (I) the fees and expenses of the Company's accountants and
the fees and expenses of counsel (including local and special counsel)
for the Company; and (J) all other costs and expenses incident to the
performance by the Company of its obligations under this U.S.
Underwriting Agreement and the International Underwriting Agreement.
(ix) In connection with the Directed Share Program, the
Company will ensure that the Directed Shares will be restricted to the
extent required by the National Association of Securities Dealers, Inc.
(the "NASD") or the NASD rules from sale, transfer, assignment, pledge
or hypothecation for a period of three months following the date of the
effectiveness of the Registration Statement. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
will notify the Company as to which Participants will need to be so
restricted. The Company will direct the removal of such transfer
restrictions upon the expiration of such period of time.
(x) The Company will pay all fees and disbursements of
counsel incurred by the U.S. Underwriters in connection with the
Directed Share Program (including the printing (or reproduction) and
delivery (including postage, air freight charges and charges for
counting and packaging) of such copies of the Directed Share Program
materials) and stamp duties, similar taxes or duties or other taxes, if
any, incurred by the U.S. Underwriters in connection with the Directed
Share Program.
(b) Citigroup agrees with the several U.S. Underwriters
that:
(i) Citigroup will not, without the prior written consent
of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., offer, sell, contract to sell, pledge, or
otherwise dispose of (or enter into any transaction which is designed
to, or might reasonably be expected to, result in the disposition of
(whether by actual disposition or effective economic disposition due to
cash settlement or otherwise) by the Company or any affiliate of the
Company or any person in privity with the Company or any affiliate of
the Company), directly or indirectly, including the filing (or
participation in the filing) of a registration statement with the
Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the
meaning of Section 16 of the Exchange Act with respect to, any other
shares of Common Stock or shares of Class B Common Stock or any
securities convertible into, or exercisable or exchangeable for, shares
of Common Stock or shares of Class B Common Stock; or publicly announce
an
15
intention to effect any such transaction, for a period of 180 days
after the date of the U.S. Underwriting Agreement, provided, however,
that (A) the Company may issue and sell the Notes in the concurrent
offering of the Notes contemplated by the Prospectuses, (B) the Company
may issue shares of Common Stock upon conversion of the Notes, (C) the
Company may grant options to purchase shares of Common Stock or Class B
Common Stock, (D) the Company may issue shares of Common Stock or Class
B Common Stock upon the conversion of securities or the exercise of
warrants outstanding at the Execution Time or upon the exercise of
options under its stock option plans, (E) the Company may issue
restricted shares of Common Stock or Class B Common Stock pursuant to
the Company's 2002 stock incentive plan, (F) the Company may issue or
sell shares of Common Stock or Class B Common Stock in connection with
an acquisition or business combination, (G) Citigroup may privately
transfer shares of the Company's Common Stock or Class B Common Stock,
as long as the acquirer of such shares agrees in writing to be bound by
the obligations and restrictions set forth in this clause (i), and (H)
the Company may issue shares of Common Stock or Class B Common Stock in
connection with the transactions contemplated under the heading
"Summary -- Our Corporate Reorganization" in the Prospectuses.
(ii) Citigroup will not take, directly or indirectly, any
action designed to or which has constituted or which might reasonably
be expected to cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(c) Each U.S. Underwriter agrees that (i) it is not
purchasing any of the U.S. Securities for the account of anyone other than a
United States or Canadian Person, (ii) it has not offered or sold, and will not
offer or sell, directly or indirectly, any of the U.S. Securities or distribute
any U.S. Prospectus to any person outside the United States or Canada, or to
anyone other than a United States or Canadian Person, and (iii) any dealer to
whom it may sell any of the U.S. Securities will represent that it is not
purchasing for the account of anyone other than a United States or Canadian
Person and agree that it will not offer or resell, directly or indirectly, any
of the U.S. Securities outside the United States or Canada, or to anyone other
than a United States or Canadian Person or to any other dealer who does not so
represent and agree; provided, however, that the foregoing shall not restrict
(i) purchases and sales between the International Underwriters on the one hand
and the U.S. Underwriters on the other hand pursuant to the Agreement Between
U.S. Underwriters and International Underwriters, (ii) stabilization
transactions contemplated under the Agreement Between U.S. Underwriters and
International Underwriters, conducted through ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. (or
through the U.S. Representatives and International Representatives) as part of
the distribution of the Securities, and (iii) sales to or through (or
distributions of the U.S. Prospectus or the U.S. Preliminary Prospectus to)
United States or Canadian Persons who are investment advisors, or who otherwise
exercise investment discretion, and who are purchasing for the account of anyone
other than a United States or Canadian Person.
(d) The agreements of the U.S. Underwriters set forth in
paragraph (c) of this Section 5 shall terminate upon the earlier of the
following events:
16
(i) a mutual agreement of the U.S. Representatives and
the International Representatives to terminate the selling restrictions
set forth in paragraph (c) of this Section 5 and in Section 5(c) of the
International Underwriting Agreement; or
(ii) the expiration of a period of 30 days after the
Closing Date, unless (A) the U.S. Representatives shall have given
notice to the Company and the International Representatives that the
distribution of the U.S. Securities by the U.S. Underwriters has not
yet been completed, or (B) the International Representatives shall have
given notice to the Company and the U.S. Representatives that the
distribution of the International Securities by the International
Underwriters has not yet been completed. If such notice by the U.S.
Representatives or the International Representatives is given, the
agreements set forth in such paragraph (c) shall survive until the
earlier of (1) the event referred to in clause (i) of this subsection
(d) or (2) the expiration of an additional period of 30 days from the
date of any such notice.
6. Conditions to the Obligations of the U.S.
Underwriters. The obligations of the U.S. Underwriters to purchase the U.S.
Underwritten Securities and the U.S. Option Securities, as the case may be,
shall be subject to the accuracy of the representations and warranties on the
part of the Company and Citigroup contained herein as of the Execution Time, the
Closing Date and any settlement date pursuant to Section 3 hereof, to the
accuracy of the statements of the Company and Citigroup made in any certificates
pursuant to the provisions hereof, to the performance by each of the Company and
Citigroup of their respective obligations hereunder and to the following
additional conditions:
(a) If the Registration Statement has not become
effective prior to the Execution Time, unless the U.S. Representatives
and the International Representatives agree in writing to a later time,
the Registration Statement will become effective not later than (i)
6:00 PM New York City time on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM
New York City time on such date or (ii) 9:30 AM on the Business Day
following the day on which the public offering price was determined, if
such determination occurred after 3:00 PM New York City time on such
date; if filing of either of the Prospectuses, or any supplement
thereto, is required pursuant to Rule 424(b), the Prospectuses, and any
such supplement, will be filed in the manner and within the time period
required by Rule 424(b); and no stop order suspending the effectiveness
of the Registration Statement shall have been issued and no proceedings
for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇, special counsel for the Company and
Citigroup, to have furnished to the Representatives their opinion,
dated the Closing Date and addressed to the Representatives,
substantially in the form of Exhibit A.
(c) The Company shall have requested and caused Simpson,
Thacher & ▇▇▇▇▇▇▇▇, special counsel for the Company, to have furnished
to the Representatives their opinion, dated the Closing Date and
addressed to the Representatives, substantially in the form of Exhibit
B.
17
(d) The Company and Citigroup shall have requested and
caused ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., corporate counsel for the Company and
Citigroup, to have furnished to the Representatives his opinion, dated
the Closing Date and addressed to the Representatives, substantially in
the form of Exhibit C.
(e) The Company shall have requested and caused ▇▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇ LLC, special Connecticut counsel for the Company, to have
furnished to the Representatives their opinion, dated the Closing Date
and addressed to the Representatives, substantially in the form of
Exhibit D.
(f) The Representatives shall have received from Cleary,
Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, such opinion
or opinions, dated the Closing Date and addressed to the
Representatives, with respect to the issuance and sale of the
Securities, the Registration Statement, the Prospectuses (together with
any supplement thereto) 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 the
purpose of enabling them to pass upon such matters.
(g) The Company shall have furnished to the
Representatives a certificate of the Company, signed by the Chairman of
the Board or the President and the principal financial or accounting
officer of the Company, dated the Closing Date, to the effect that the
signers of such certificate have carefully examined the Registration
Statement, the Prospectuses, any supplements to the Prospectuses and
the Underwriting Agreements and that:
(i) the representations and warranties of the
Company in the Underwriting Agreements are true and correct on
and as of the Closing Date with the same effect as if made on
the Closing Date and the Company has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(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 most recent financial
statements included in the Prospectuses (exclusive of any
supplement thereto), there has been no material adverse change
in the condition (financial or otherwise), earnings, business
or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or
contemplated in the Prospectuses (exclusive of any supplement
thereto).
(h) The Company shall have requested and caused KPMG LLP
to have furnished to the Representatives, at the Execution Time and at
the Closing Date, letters, dated respectively as of the Execution Time
and as of the Closing Date, substantially in the form of Exhibit E
hereto.
18
(i) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Prospectuses (exclusive of
any supplement thereto), there shall not have been (i) any change or
decrease specified in the letter or letters referred to in paragraph
(h) of this Section 6 or (ii) any change, or any development involving
a prospective change, in or affecting the condition (financial or
otherwise), earnings, business or properties of the Company and its
subsidiaries taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in or
contemplated in the Prospectuses (exclusive of any supplement thereto),
the effect of which, in any case referred to in clause (i) or (ii)
above, is, in the sole judgment of the U.S. Representatives, so
material and adverse as to make it impractical or inadvisable to
proceed with the offering or delivery of the U.S. Securities as
contemplated by the Registration Statement (exclusive of any amendment
thereof) and the Prospectuses (exclusive of any supplement thereto).
(j) Subsequent to the Execution Time, there shall not
have been (i) any decrease in the rating of any debt securities of the
Company or any of its subsidiaries or the financial strength or the
claims paying ability of the Company, any of its subsidiaries or any
intracompany insurance pool to which any Insurance Subsidiary belongs
by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) or A.M. Best Co. or
(ii) any 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.
(k) Prior to the Closing Date, the Company shall have
furnished to the U.S. Representatives such further information,
certificates and documents as the U.S. Representatives may reasonably
request.
(l) The Securities shall have been listed and admitted
and authorized for trading on the New York Stock Exchange, subject to
notice of issuance, and satisfactory evidence of such actions shall
have been provided to the Representatives.
(m) At the Execution Time, the Company shall have
furnished to the Representatives a letter substantially in the form of
Exhibit F hereto from each officer and director of the Company and each
Participant in the Directed Share Program addressed to the
Representatives.
(n) The Company shall have consummated the transactions
contemplated under the caption "Summary -- Our Corporate
Reorganization" in the Prospectuses.
(o) The closing of the purchase of the U.S. Underwritten
Securities to be issued and sold by the Company pursuant to the U.S.
Underwriting Agreement shall occur concurrently with the closing of the
International Underwritten Securities to be issued and sold by the
Company pursuant to the International Underwriting Agreement.
19
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this U.S.
Underwriting Agreement and the International Underwriting Agreement, or if any
of the opinions and certificates mentioned above or elsewhere in this U.S.
Underwriting Agreement and the International Underwriting Agreement shall not be
in all material respects reasonably satisfactory in form and substance to the
U.S. Representatives and counsel for the Underwriters, this U.S. Underwriting
Agreement and all obligations of the U.S. Underwriters under this U.S.
Underwriting Agreement may be canceled at, or at any time prior to, the Closing
Date by the U.S. 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 6 shall
be delivered at the office of Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for
the Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ the Closing Date.
7. Reimbursement of U.S. Underwriters' Expenses. If the
sale of the U.S. Securities provided for herein is not consummated because any
condition to the obligations of the U.S. Underwriters set forth in Section 6
hereof is not satisfied, because of any termination pursuant to Section 10
hereof or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision hereof
other than by reason of a default by any of the U.S. Underwriters, the Company
will reimburse the U.S. Underwriters severally through ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
on demand for all 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.
8. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each U.S. Underwriter, the directors,
officers, employees and agents of each U.S. Underwriter and each person who
controls any U.S. 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 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 for the registration of the Securities as originally filed or in any
amendment thereof, or in any U.S. or International Preliminary Prospectus or in
either of the Prospectuses, or in any amendment thereof or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and 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 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 U.S. Underwriter through the U.S. Representatives specifically for inclusion
therein; provided further that with respect to any untrue statement or omission
of material fact made in any U.S. Preliminary Prospectus, the
20
indemnity agreement contained in this Section 8(a) shall not inure to the
benefit of any U.S. Underwriter from whom the person asserting any such loss,
claim, damage or liability purchased the securities concerned, to the extent
that any such loss, claim, damage or liability of such U.S. Underwriter occurs
under the circumstance where it shall have been determined by a court of
competent jurisdiction by final and nonappealable judgment that (w) the Company
had previously furnished copies of the U.S. Prospectus to the U.S.
Representatives, (x) delivery of the U.S. Prospectus was required by the Act to
be made to such person, (y) the untrue statement or omission of a material fact
contained in the U.S. Preliminary Prospectus was corrected in the U.S.
Prospectus and (z) there was not sent or given to such person, at or prior to
the written confirmation of the sale of such securities to such person, a copy
of the U.S. Prospectus. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) The Company agrees to indemnify and hold harmless
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., the directors, officers, employees and agents of
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. and each person who controls ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
within the meaning of either the Act or the Exchange Act, from and against any
and all losses, claims, damages and liabilities to which they may become subject
under the Act, the Exchange Act or other federal or state statutory law or
regulation, at common law or otherwise (including, without limitation, any legal
or other expenses reasonably incurred in connection with defending or
investigating any such action or claim), insofar as such losses, claims damages
or liabilities (or actions in respect thereof) (i) are caused by the failure of
any Participant to pay for and accept delivery of the Directed Shares allocated
by the Company to such Participant or (ii) relate to, arise out of, or occur in
connection with the Directed Share Program, provided that in the case of clause
(ii) the Company will not be liable to the extent that such loss, claim, damage
or liability results from the gross negligence or willful misconduct of ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
(c) Each U.S. 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 U.S.
Underwriter, but only with reference to written information relating to such
U.S. Underwriter furnished to the Company by or on behalf of such U.S.
Underwriter through the U.S. Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any U.S. Underwriter may otherwise have.
The Company acknowledges that the statements set forth in the last paragraph of
the cover page regarding delivery of the U.S. Securities and, under the heading
"Underwriting" (i) the list of U.S. Underwriters and their respective
participation in the sale of the Securities, (ii) the sixth full paragraph
related to concessions and reallowances, (iii) the fourteenth and fifteenth full
paragraphs related to stabilization, syndicate covering transactions and penalty
bids in any U.S. Preliminary Prospectus and the U.S. Prospectus, (iv) the
nineteenth full paragraph related to the assumption by ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the "Independent Underwriter") of all
responsibilities as the "qualified independent underwriter" (within the meaning
of National Association of Securities Dealers, Inc. Conduct Rule 2720) and (v)
the twenty first paragraph related to electronic distribution of the
Prospectuses and allocation for electronic distribution of the Securities
constitute the only
21
information furnished in writing by or on behalf of the several U.S.
Underwriters for inclusion in any U.S. Preliminary Prospectus or the U.S.
Prospectus.
(d) Promptly after receipt by an indemnified party under
this Section 8 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 8, 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), (b) or (c) 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), (b) or (c) 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);
provided, however, that such counsel shall be reasonably 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 reasonably 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. Notwithstanding anything contained herein to
the contrary, if indemnity may be sought pursuant to Section 8(b) hereof in
respect of such action or proceeding, then in addition to such separate firm for
the indemnified parties, the indemnifying party shall be liable for the
reasonable fees and expenses of not more than one separate firm (in addition to
any local counsel) for ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., the directors, officers,
employees and agents of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., and all persons, if any, who
control ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. within the meaning of either the Act or the
Exchange Act for the defense of any losses, claims, damages and liabilities
arising out of the Directed Share Program, if (i) the use of counsel chosen by
the indemnifying party to represent ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. would present such
counsel with a conflict of interest, (ii) the actual or potential defendants in,
or targets of, any such action include both ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. and the
indemnifying party or other indemnified parties and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
shall have reasonably concluded that there may be legal defenses available to it
which are different from or additional to those available to the indemnifying
party or other indemnified parties, (iii) the indemnifying party shall not have
employed counsel reasonably satisfactory to ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. pursuant
to the second sentence of this subsection (d) or (iv) the indemnifying party
22
shall authorize ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. 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 includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding.
An indemnifying party shall not be liable under this Section 8 to any
indemnified party regarding any settlement 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
is consented to by such indemnifying party, which consent shall not be
unreasonably withheld.
(e) In the event that the indemnity provided in paragraph
(a), (b) or (c) of this Section 8 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company and the U.S.
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 U.S. 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 U.S. Underwriters on the other from the
offering of the U.S. Securities; provided, however, that in no case shall (i)
any U.S. Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the U.S. Securities) be responsible for
any amount in excess of the underwriting discount or commission applicable to
the Securities purchased by such U.S. Underwriter hereunder or (ii) the
Independent Underwriter in its capacity as "qualified independent underwriter"
(within the meaning of National Association of Securities Dealers, Inc. Conduct
Rule 2720) be responsible for any amount in excess of the compensation received
by the Independent Underwriter for acting in such capacity. If the allocation
provided by the immediately preceding sentence is unavailable for any reason,
the Company and the U.S. 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 U.S. 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 the Company, and
benefits received by the U.S. 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 U.S. Prospectus. Benefits received by the Independent
Underwriter in its capacity as "qualified independent underwriter" shall be
deemed to be equal to the compensation received by the Independent Underwriter
for acting in such capacity. Relative fault shall be determined by reference to,
among other things, 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 U.S.
Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and
23
opportunity to correct or prevent such untrue statement or omission. The Company
and the U.S. 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 (e), 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 8, each person who
controls a U.S. Underwriter within the meaning of either the Act or the Exchange
Act and each director, officer, employee and agent of a U.S. Underwriter shall
have the same rights to contribution as such U.S. 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 (e).
(f) Without limitation of and in addition to its
obligations under the other paragraphs of this Section 8, the Company agrees to
indemnify and hold harmless the Independent Underwriter, its directors,
officers, employees and agents and each person who controls the Independent
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, insofar as such losses, claims, damages or
liabilities (or action in respect thereof) arise out of or are based upon the
Independent Underwriter's acting as a "qualified independent underwriter"
(within the meaning of National Association of Securities Dealers, Inc. Conduct
Rule 2720) in connection with the offering contemplated by the Underwriting
Agreements, and agrees to reimburse each such indemnified party, as incurred,
for any legal or other expenses reasonably incurred by it 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 to the
extent that any such loss, claim, damage or liability results from the gross
negligence or willful misconduct of the Independent Underwriter.
(g) In the event that the indemnity and contribution
provided in paragraph (a), (b), (e) or (f) of this Section 8 is unavailable to
or insufficient to hold harmless any U.S. Underwriter, any director, officer,
employee or agent of any U.S. Underwriter or any person who controls any U.S.
Underwriter within the meaning of either the Act or the Exchange Act by reason
of the Company having failed to fulfill in any respect its payment obligations
under any such paragraph, Citigroup agrees to indemnify and hold harmless any
such indemnified person, or to contribute to the Losses of any such indemnified
person, as the case may be, to the extent of such unavailability or
insufficiency. Notwithstanding anything to the contrary in this Section 8, in no
case shall Citigroup be responsible for any amount under the indemnity and
contribution provisions of this Section 8 in excess of the amount of
$1,600,000,000.
9. Default by a U.S. Underwriter. If any one or more
U.S. Underwriters shall fail to purchase and pay for any of the U.S. Securities
agreed to be purchased by such U.S. Underwriter or U.S. Underwriters hereunder
and such failure to purchase shall constitute a default in the performance of
its or their obligations under this U.S. Underwriting Agreement, the remaining
U.S. Underwriters shall be obligated severally to take up and pay for (in the
respective proportions which the amount of U.S. Securities set forth opposite
their names in
24
Schedule I hereto bears to the aggregate amount of U.S. Securities set forth
opposite the names of all the remaining U.S. Underwriters) the U.S. Securities
which the defaulting U.S. Underwriter or U.S. Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of U.S.
Securities which the defaulting U.S. Underwriter or U.S. Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of U.S. Securities
set forth in Schedule I hereto, the remaining U.S. Underwriters shall have the
right to purchase all, but shall not be under any obligation to purchase any, of
the U.S. Securities, and if such nondefaulting U.S. Underwriters do not purchase
all the U.S. Securities, this U.S. Underwriting Agreement will terminate without
liability to any nondefaulting U.S. Underwriter, the Company or Citigroup. In
the event of a default by any U.S. Underwriter as set forth in this Section 9,
the Closing Date shall be postponed for such period, not exceeding five Business
Days, as the U.S. Representatives shall determine in order that the required
changes in the Registration Statement and the Prospectuses or in any other
documents or arrangements may be effected. Nothing contained in this U.S.
Underwriting Agreement shall relieve any defaulting U.S. Underwriter of its
liability, if any, to the Company, Citigroup and any nondefaulting U.S.
Underwriter for damages occasioned by its default hereunder.
10. Termination. This U.S. Underwriting Agreement shall
be subject to termination in the absolute discretion of the U.S.
Representatives, by notice given to the Company and Citigroup prior to delivery
of and payment for the U.S. Securities, if at any time prior to such time (a)
trading in the Company's Common Stock shall have been suspended by the
Commission or the New York Stock Exchange or 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, (b) a banking moratorium
shall have been declared either by federal, New York State or Connecticut State
authorities or (c) 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 U.S. Representatives, impractical or
inadvisable to proceed with the offering or delivery of the U.S. Securities as
contemplated by the U.S. Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers, of Citigroup or its officers, and of
the U.S. Underwriters set forth in or made pursuant to this U.S. Underwriting
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any U.S. Underwriter or the Company or Citigroup or any
of the officers, directors, employees, agents or controlling persons referred to
in Section 8 hereof, and will survive delivery of and payment for the U.S.
Securities. The provisions of Sections 7 and 8 hereof shall survive the
termination or cancellation of this U.S. Underwriting Agreement.
12. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the U.S. Representatives,
will be mailed, delivered or telefaxed to the ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. General
Counsel (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to the General Counsel, ▇▇▇▇▇▇▇
▇▇▇▇▇ Barney Inc., at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇,
Attention: General Counsel; if sent to the Company, will be mailed, delivered or
telefaxed to the Company's General Counsel (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) and
confirmed to it at
25
Travelers Property Casualty Corp., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇, attention of the legal department; or, if sent to Citigroup, will be
mailed, delivered or telefaxed to Citigroup's Co-General Counsel (fax no.: (212)
▇▇▇-▇▇▇▇) and confirmed to it, at Citigroup Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇▇▇, attention of the Legal Department.
13. Successors. This U.S. Underwriting Agreement will
inure to the benefit of and be binding upon the parties hereto and their
respective successors and the officers, directors, employees, agents and
controlling persons referred to in Section 8 hereof, and no other person will
have any right or obligation hereunder.
14. Applicable Law. This U.S. Underwriting Agreement will
be governed by and construed in accordance with the laws of the State of New
York applicable to contracts made and to be performed within the State of New
York.
15. Counterparts. This U.S. Underwriting Agreement may be
signed in one or more counterparts, each of which shall constitute an original
and all of which together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in
this U.S. Underwriting Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a
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 or Connecticut.
"Commission" shall mean the Securities and Exchange
Commission.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this U.S.
Underwriting Agreement is executed and delivered by the parties hereto.
"International Preliminary Prospectus" shall have the meaning
set forth under "U.S. Preliminary Prospectus."
26
"International Prospectus" shall mean such form of prospectus
relating to the International Securities as first filed pursuant to
Rule 424(b) after the Execution Time or, if no filing pursuant to Rule
424(b) is made, such form of prospectus included in the Registration
Statement at the Effective Date.
"International Representatives" shall mean the addressees of
the International Underwriting Agreement.
"Option Securities" shall mean the U.S. Option Securities and
the International Option Securities.
"Preliminary Prospectus" shall have the meaning set forth
under "U.S. Preliminary Prospectus."
"Prospectuses" and "each Prospectus" shall mean the U.S.
Prospectus and the International Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a)(i) above, including exhibits and
financial statements, as amended at the Execution Time (or, if not
effective at the Execution Time, in the form in which it shall become
effective) and, in the event any post-effective amendment thereto or
any Rule 462(b) Registration Statement becomes effective prior to the
Closing Date, shall also mean such registration statement as so amended
or such Rule 462(b) Registration Statement, as the case may be. Such
term shall include any Rule 430A Information deemed to be included
therein at the Effective Date as provided by Rule 430A.
"Representatives" shall mean the U.S. Representatives and the
International Representatives.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from
the Registration Statement when it becomes effective pursuant to Rule
430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 1(a)(i) hereof.
"Underwriter" and "Underwriters" shall mean the U.S.
Underwriters and the International Underwriters.
"Underwriting Agreements" shall mean the U.S. Underwriting
Agreement and the International Underwriting Agreement.
"Underwritten Securities" shall mean the International
Underwritten Securities and the U.S. Underwritten Securities.
27
"U.S. Preliminary Prospectus" and the "International
Preliminary Prospectus", respectively, shall mean any preliminary
prospectus with respect to the offering of the U.S. Securities and the
International Securities, as the case may be, referred to in paragraph
1(a)(i) above and any preliminary prospectus with respect to the
offering of the U.S. Securities and the International Securities, as
the case may be, included in the Registration Statement at the
Effective Date that omits Rule 430A Information; and the U.S.
Preliminary Prospectus and the International Preliminary Prospectus are
herein collectively called the "Preliminary Prospectuses."
"U.S. Prospectus" shall mean the prospectus relating to the
Securities that is first filed pursuant to Rule 424(b) after the
Execution Time or, if no filing pursuant to Rule 424(b) is required,
shall mean the form of final prospectus relating to the Securities
included in the Registration Statement at the Effective Date.
"United States or Canadian Person" shall mean any person who
is a national or resident of the United States or Canada, any
corporation, partnership, or other entity created or organized in or
under the laws of the United States or Canada or of any political
subdivision thereof, or any estate or trust the income of which is
subject to United States or Canadian Federal income taxation,
regardless of its source (other than any non-United States or
non-Canadian branch of any United States or Canadian Person), and shall
include any United States or Canadian branch of a person other than a
United States or Canadian Person. "U.S." or "United States" shall mean
the United States of America (including the states thereof and the
District of Columbia), its territories, its possessions and other areas
subject to its jurisdiction.
28
CGSH Draft of March 18, 2002
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, Citigroup and the several U.S. Underwriters.
Very truly yours,
TRAVELERS PROPERTY CASUALTY CORP.
By: ____________________________________
Name:
Title:
CITIGROUP INC.
By: ____________________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
Credit Suisse First Boston Corporation
▇▇▇▇▇▇▇, Sachs & Co.
▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
By: _________________________
Name:
Title:
For themselves and the other
several U.S. Underwriters named in
Schedule I to the foregoing Agreement.
SCHEDULE I
NUMBER OF
U.S. UNDERWRITTEN
SECURITIES TO BE
U.S. UNDERWRITERS PURCHASED
--------------------------------------------------- ---------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
Credit Suisse First Boston Corporation
▇▇▇▇▇▇▇, Sachs & Co.
▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Banc of America Securities LLC
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇▇▇▇▇▇ & Partners, L.P.
Deutsche Banc Alex. ▇▇▇▇▇ Inc.
▇▇▇-▇▇▇▇, ▇▇▇▇▇▇ Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLC
UBS Warburg LLC
The ▇▇▇▇▇▇▇▇ Capital Group, L.P
Total
ANNEX A
Insurance Subsidiaries of the Company
NAME JURISDICTION OF INCORPORATION
---- -----------------------------
[TO BE PROVIDED BY THE COMPANY]
ANNEX B
Agreements
[Intercompany Agreement, dated as of , between the Company and Citigroup]
[Tax Sharing Agreement, dated as of , between the Company and Citigroup]
[Indemnification Agreement, dated as of , between the Company and Citigroup]
[Line of Credit Agreement, dated as of , between the Company and Citigroup]
[Credit Agreement, dated as of , between the Company, Citigroup and ]
[Intercompany Notes, dated as of , from Citigroup to the Company]
[Exchange Agreement, dated as of , between the Company, Citigroup]
EXHIBIT A
[FORM OF OPINION TO BE PROVIDED BY SKADDEN, ARPS, SLATE, ▇▇▇▇▇▇▇ & ▇▇▇▇]
EXHIBIT B
[FORM OF OPINION TO BE PROVIDED BY ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇]
EXHIBIT C
[FORM OF OPINION TO BE PROVIDED BY ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ESQ.]
EXHIBIT D
[FORM OF ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLC OPINION]
EXHIBIT E
[FORM OF COMFORT LETTER]
EXHIBIT F
[LETTERHEAD OF EACH OFFICER OR DIRECTOR OF TRAVELERS PROPERTY CASUALTY CORP.
OR ANY PARTICIPANT IN THE DIRECTED SHARE PROGRAM]
Travelers Property Casualty Corp.
Public Offering of Class A Common Stock
, 20
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
Credit Suisse First Boston Corporation
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
As Representatives of the several U.S. Underwriters
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
U.S Underwriting Agreement (the "U.S Underwriting Agreement"), among Travelers
Property Casualty Corp., a Connecticut corporation (the "Company"), Citigroup
Inc., a Delaware corporation ("Citigroup"), and you as representatives of a
group of U.S. Underwriters named therein, relating to an underwritten public
offering of Class A Common Stock, $0.01 par value per share (the "Common
Stock"), of the Company.
In order to induce you and the other U.S. Underwriters to enter into
the U.S. Underwriting Agreement, the undersigned will not, without the prior
written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., offer, sell, contract to sell,
pledge or otherwise dispose of (or enter into any transaction which is designed
to, or might reasonably be expected to, result in the disposition of (whether by
actual disposition or effective economic disposition due to cash settlement or
otherwise) by the undersigned or any affiliate of the undersigned or any person
in privity with the undersigned or any affiliate of the undersigned), directly
or indirectly, including the filing (or participation in the filing) of a
registration statement with the Securities and Exchange Commission in respect
of, or establish or increase a put equivalent position or liquidate or decrease
a call equivalent position within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder with respect to, any
shares of capital stock of the Company or any securities convertible into, or
exercisable or exchangeable for, such capital stock, or publicly announce an
intention to effect any such transaction, for a period of [for officers and
directors of Travelers Property Casualty Corp. and employees of Travelers
Property Casualty Corp. participating in the Directed Share Program for their
own account: 180 days] [for
employees of Travelers Property Casualty Corp. participating in the
Directed Share Program through the Citigroup 401(k) Plan: 60 days] [for
independent agents participating in the Directed Share Program: 365 days] after
the date of the Underwriting Agreement, other than shares of Common Stock
disposed of as bona fide gifts approved by ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
If for any reason the U.S. Underwriting Agreement shall be terminated
prior to the Closing Date (as defined in the U.S. Underwriting Agreement), the
agreement set forth above shall likewise be terminated.
Yours very truly,
[SIGNATURE OF OFFICER, DIRECTOR OR
DIRECTED SHARE PROGRAM PARTICIPANT]
[NAME AND ADDRESS OF OFFICER, DIRECTOR
OR DIRECTED SHARE PROGRAM PARTICIPANT]