EXHIBIT 1.1
LINCOLN NATIONAL CAPITAL III
LINCOLN NATIONAL CAPITAL IV
LINCOLN NATIONAL CAPITAL V
LINCOLN NATIONAL CAPITAL VI
Preferred Securities
(liquidation amount $25 per preferred security)
guaranteed to the extent set forth in the Guarantee by
LINCOLN NATIONAL CORPORATION
Underwriting Agreement Basic Provisions
July 17, 1998
From time to time, Lincoln National Capital III, Lincoln National Capital
IV, Lincoln National Capital V or Lincoln National Capital VI, each a statutory
business trust formed under the laws of the State of Delaware (each a "Trust"
and collectively, the "Trusts"), and Lincoln National Corporation, an Indiana
corporation (the "Guarantor"), as depositor of each Trust and as Guarantor,
propose to enter into one or more Pricing Agreements (each a "Pricing
Agreement") in the form of Annex I hereto, with such additions and deletions as
the parties thereto may determine, and, subject to the terms and conditions
stated herein and therein, which shall provide that the Trust identified in the
applicable Pricing Agreement (such Trust being the "Designated Trust" with
respect to such Pricing Agreement) shall issue and sell to the firms (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and the
securities specified therein) certain of its preferred securities (the
"Securities") identified in Schedule I to the applicable Pricing Agreement (with
respect to such Pricing Agreement, the "Firm Designated Securities")
representing undivided beneficial interests in the assets of the Designated
Trust, guaranteed by the Guarantor to the extent set forth in the guarantee
agreement (the "Guarantee") identified in such Pricing Agreement. If specified
in such Pricing Agreement, the Designated Trust may grant to the Underwriters
the right to purchase at their election an additional number of Securities,
specified in such Pricing Agreement as provided in Section 3 hereof (the
"Optional Designated Securities"). The Firm Designated Securities and any
Optional Designated Securities are collectively called the "Designated
Securities." The proceeds of the sale of the Designated Securities and of
common securities of the Trust (the "Common Securities") sold to the Guarantor
are to be invested in junior subordinated deferrable interest debentures of the
Guarantor (the "Subordinated Debentures"), to be issued pursuant to a junior
subordinated indenture (the "Indenture") identified in the Pricing Agreement.
The Designated Securities may be exchangeable into Subordinated Debentures,
as specified in Schedule II to such Pricing Agreement. Pursuant to the Guarantee
Agreement identified in the Pricing Agreement relating to any particular
issuance of Designated Securities, the Designated Securities will be guaranteed
by the Guarantor to the extent set forth in such Pricing Agreement (the
"Guarantee").
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the amended and restated trust agreement (the "Trust Agreement")
identified in such Pricing Agreement.
Particular sales of Designated Securities may be made from time to time to
the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to Underwriters who act without any firm being designated
as their representative. These Underwriting Agreement Basic Provisions (the
"Underwriting Agreement") shall not be construed as an obligation of any Trust
to sell any of the Securities or as an obligation of any of the Underwriters to
purchase any of the Securities. The obligation of any Trust to issue and sell
any of the Securities and the obligation of any of the Underwriters to purchase
any of the Securities shall be evidenced by the Pricing Agreement with respect
to the Securities specified therein. Each Pricing Agreement shall specify the
aggregate number of Firm Designated Securities, the aggregate number of Optional
Designated Securities, if any, the initial public offering price of such Firm
and Optional Designated Securities or the manner of determining such price, the
terms of the Designated Securities, including the terms on which and terms of
the securities into which the Designated Securities will be exchangeable, the
purchase price to the Underwriters of such Designated Securities, the names of
the Underwriters of such Designated Securities, the names of the Representatives
of such Underwriters and the number of such Designated Securities to be
purchased by each Underwriter and the commission, if any, payable to the
Underwriters with respect thereto and shall set forth the date, time and manner
of delivery of such Designated Securities and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the Trust Agreement
or the registration statement and prospectus with respect thereto) the terms of
such Securities. A Pricing Agreement shall be in the form of an executed
writing (which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
1. Each of the Guarantor and the Designated Trust jointly and severally
represents and warrants to, and agrees with, each of the Underwriters that:
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(a) A registration statement on Form S-3 (File No. 333-49201) in
respect of the Securities, the Subordinated Debentures, the Guarantees and
certain other debt securities, preferred stock, common stock, warrants, stock
purchase contracts, stock purchase units or a combination thereof has been filed
with the Securities and Exchange Commission (the "Commission"); such
registration statement and any post-effective amendment thereto, each in the
form heretofore delivered or to be delivered to the Representatives and,
excluding exhibits to such registration statement, but including all documents
incorporated by reference in the prospectus contained therein, to the
Representatives for each of the other Underwriters, have been declared effective
by the Commission in such form; no other document with respect to such
registration statement or document incorporated by reference therein has
heretofore been filed or transmitted for filing with the Commission; and no stop
order suspending the effectiveness of such registration statement has been
issued and no proceeding for that purpose has been initiated or threatened by
the Commission (any preliminary prospectus included in such registration
statement or filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Securities Act of 1933, as amended (the
"Act"), being hereinafter called a "Preliminary Prospectus"; the various parts
of such registration statement, including (i) the information contained in the
form of final prospectus filed with the Commission pursuant to Rule 424(b) under
the Act in accordance with Section 4(a) hereof and deemed by virtue of Rule 430A
under the Act to be part of the registration statement at the time it was
declared effective and (ii) all exhibits thereto and the documents incorporated
by reference in the prospectus contained in the registration statement at the
time such part of the registration statement became effective, being hereinafter
called the "Registration Statement"; the prospectus relating to the Securities,
the Subordinated Debentures and the Guarantees, in the form in which it has most
recently been filed, or transmitted for filing, with the Commission on or prior
to the date of this Agreement, being hereinafter called the "Prospectus"; any
reference herein to any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include the documents incorporated by reference therein pursuant
to the applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and incorporated by reference in such
Preliminary Prospectus or Prospectus, as the case may be; any reference to any
amendment to the Registration Statement shall be deemed to refer to and include
any annual report of the Guarantor filed pursuant to Section 13(a) or 15(d) of
the Exchange Act after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and any reference to
the Prospectus as amended or supplemented shall be deemed to refer to the
Prospectus as amended or supplemented in relation to the applicable Designated
Securities in the form in which it is filed with the Commission pursuant to Rule
424(b) under the Act in accordance with Section 4(a) hereof, including any
documents incorporated by reference therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue
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statement of a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
and any further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the case may
be, will conform in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished
in writing to the Designated Trust or the Guarantor by an Underwriter of
Designated Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the Act
and the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and
the rules and regulations of the Commission thereunder and do not and will not,
as of the applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to the
Designated Trust or the Guarantor by an Underwriter of Designated Securities
through the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities;
(d) Except as described in or contemplated by the Registration
Statement and the Prospectus, there has not been any material adverse change in,
or any adverse development which materially affects, the business, properties,
financial condition or results of operations of the Designated Trust or the
Guarantor and its subsidiaries taken as a whole from the dates as of which
information is given in the Registration Statement and the Prospectus; and,
since the respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the consolidated
capital stock (other than issuances of capital stock upon exercise of options
and stock appreciation rights or pursuant to existing employee benefit plans and
upon conversions of convertible securities which were outstanding on the date of
the latest balance sheet included or incorporated by reference in the
Prospectus) or any increase in the consolidated long-term debt of the Guarantor
and its subsidiaries in excess of 5% or any material adverse change, or any
development involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity or results
of operations of the Guarantor and its subsidiaries taken as a whole, otherwise
than as set forth or contemplated in the Prospectus;
(e) The Guarantor and each subsidiary of the Guarantor which meets
the definition of a significant subsidiary as defined in Regulation S-X of the
Commission (each a
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"Significant Subsidiary") has been duly incorporated and is validly existing
as a corporation under the laws of the jurisdiction of its incorporation
(except when failure to be qualified would not have a material adverse effect
on the Guarantor and the subsidiaries taken as a whole), with power and
authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus; and each Designated Trust has been
duly organized and is validly existing as a business trust in good standing
under the laws of the State of Delaware, with power and authority to own,
lease and operate its properties and conduct its business as described in the
Prospectus;
(f) The Guarantor has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the Guarantor
have been duly and validly authorized and issued and are fully paid and
non-assessable; all the outstanding beneficial interests in the Designated
Trust have been duly and validly authorized and issued, are fully paid and
non-assessable and conform to the descriptions thereof contained in the
Prospectus;
(g) The Securities have been duly authorized and, when Designated
Securities are issued and delivered pursuant to this Agreement and the Pricing
Agreement with respect to such Designated Securities, such Designated Securities
will have been duly and validly issued and fully paid and non-assessable
beneficial interests in the Designated Trust entitled to the benefits provided
by the Trust Agreement, which will be substantially in the form filed as an
exhibit to the Registration Statement; and the Securities conform to the
description thereof contained in the Registration Statement and the Designated
Securities will conform to the description thereof contained in the Prospectus
as amended or supplemented with respect to such Designated Securities;
(h) The holders of the Securities (the "Securityholders") will be
entitled to the same limitation of personal liability extended to stockholders
of private corporations for profit organized under the General Corporation Law
of the State of Delaware;
(i) The Common Securities of the Designated Trust have been duly
authorized on behalf of the Designated Trust by the depositor of the Designated
Trust and upon delivery by the Designated Trust to the Guarantor against
payment therefor as set forth in the Trust Agreement, will be duly and validly
issued and non-assessable beneficial interests in the Designated Trust and will
conform to the description thereof contained in the Prospectus; the issuance of
the Common Securities is not subject to preemptive or other similar rights; the
Common Securities conform to the description thereof contained in the
Registration Statement; and at each Time of Delivery, all of the issued and
outstanding Common Securities of the Designated Trust will be directly owned by
the Guarantor free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity;
(j) The Guarantee, the Trust Agreement, the Subordinated Debentures
and the Indenture (the Guarantee, the Trust Agreement, the Subordinated
Debentures and the Indenture being collectively referred to as the "Guarantor
Agreements") have each been duly authorized and when validly executed and
delivered by the Guarantor and, in the case of the Guarantee, by the Guarantee
Trustee (as defined in the Guarantee), in the case of the Trust Agreement, by
the
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Trustees (as defined in the Trust Agreement) and, in the case of the
Indenture, by the Trustee named therein (the "Debenture Trustee"), and, in
the case of the Subordinated Debentures, when validly issued by the Guarantor
and validly authenticated and delivered by the Debenture Trustee, will
constitute valid and legally binding obligations of the Guarantor,
enforceable in accordance with their respective terms, subject to the effects
of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally,
general equitable principles (whether considered in a proceeding in equity
or at law) and an implied covenant of good faith and fair dealing; the Trust
Agreement, the Indenture and the Guarantee have been duly qualified under the
Trust Indenture Act; the Subordinated Debentures are entitled to the benefits
of the Indenture; and the Guarantor Agreements, which will be in
substantially in the form filed as an exhibit to the Registration Statement
will conform to the descriptions thereof in the Prospectus;
(k) The issue and sale of the Designated Securities and the
compliance by the Designated Trust with all of the provisions of the Designated
Securities, the Trust Agreement, this Agreement and any Pricing Agreement, the
purchase of the Subordinated Debentures by the Designated Trust and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Designated
Trust is a party or by which the Designated Trust is bound or to which any of
the property or assets of the Designated Trust is subject, nor will such action
result in any violation of the provisions of the Trust Agreement or any statute
or any order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Designated Trust or any of its properties; and no
consent, approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the issue and
sale of the Designated Securities and the Common Securities by the Designated
Trust, the purchase of the Subordinated Debentures by the Designated Trust or
the consummation by the Designated Trust of the transactions contemplated by
this Agreement or any Pricing Agreement or the Trust Agreement, except such as
have been, or will have been prior to the Time of Delivery, obtained under the
Act and the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the Securities
by the Underwriters; the Designated Trust is and will be classified for United
States federal income tax purposes as a grantor trust and not as an association
taxable as a corporation; and the Designated Trust is and will be treated as a
consolidated subsidiary of the Guarantor pursuant to generally accepted
accounting principles;
(l) The issuance by the Guarantor of the Guarantee, the compliance by
the Guarantor with all of the provisions of this Agreement and the Pricing
Agreement, the execution, delivery and performance by the Guarantor of the
Guarantor Agreements, and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Guarantor or any of its subsidiaries is a party or by
which the Guarantor or any of its subsidiaries is bound
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or to which any of the property or assets of the Guarantor or any of its
subsidiaries is subject, except for such conflicts, breaches, violations or
defaults as would not, individually or in the aggregate, have a material
adverse effect on the consolidated financial position of the Guarantor and
its subsidiaries or the consummation by the Guarantor of the transactions
contemplated by this Agreement, the Pricing Agreement or any Guarantor
Agreement, nor will such action result in any violation of the provisions of
the Articles of Incorporation or by-laws of the Guarantor or the charter or
by-laws of any of its subsidiaries or any statute or any order, rule or
regulation of any court or governmental agency or body (including, without
limitation, any insurance regulatory agency or body) having jurisdiction over
the Guarantor or any of its subsidiaries or any of their properties; and no
consent, approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the issue
of the Guarantee or the consummation by the Guarantor of the other
transactions contemplated by this Agreement or the Pricing Agreement, except
such as have been or will have been obtained prior to the First Time of
Delivery, the registration under the Act of the Securities and the
qualification of the Trust Agreement, the Indenture and the Guarantee under
the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase of the Securities and
distribution of the Securities by the Underwriters;
(m) Neither the Designated Trust nor the Guarantor is, and after
giving effect to the offering and sale of the Designated Securities, neither the
Designated Trust nor the Guarantor will be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(n) Except as described in the Prospectus, there is no action, suit
or proceeding pending, nor to the knowledge of the Guarantor, is there any
action, suit or proceeding threatened, which would be reasonably expected to
result in a material adverse change in the financial condition, results of
operations or business of the Guarantor and its subsidiaries taken as a whole or
which is required to be disclosed in the Registration Statement;
(o) To the best of the Guarantor's knowledge and belief, the
Guarantor has complied in all material respects with each, and the conduct of
its business and the conduct of business by its subsidiaries does not violate in
any material respect any, statutes, laws, regulations, rules, orders or
directives of any federal, state or local governmental authority applicable to
the Guarantor and its subsidiaries;
(p) The accountants who certified the financial statements of the
Guarantor and its subsidiaries included in or incorporated by reference in the
Prospectus are independent public accountants as required by the 1933 Act and
the 1933 Regulations;
(q) The financial statements of the Guarantor and its consolidated
subsidiaries included or incorporated by reference in the Registration Statement
and the Prospectus present fairly in all material respects the consolidated
financial position of the Guarantor and its
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consolidated subsidiaries as of the dates indicated and the consolidated
results of their operations for the periods specified; and, except as stated
therein, said financial statements have been prepared in conformity with
generally accepted accounting principles in the United States applied on a
consistent basis; and
(r) This Underwriting Agreement and the Pricing Agreement have been
duly authorized and the Pricing Agreement (incorporating this Underwriting
Agreement) has been executed and delivered by the Guarantor and the Designated
Trust.
2. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities, the several Underwriters propose to offer the Firm
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
The Designated Trust may specify in the Pricing Agreement applicable to any
Designated Securities that the Designated Trust thereby grants to the
Underwriters the right (an "Over-allotment Option") to purchase at their
election up to the number of Optional Designated Securities set forth in such
Pricing Agreement, on the terms set forth in the paragraph above, for the sole
purpose of covering over-allotments in the sale of the Firm Designated
Securities. Any such election to purchase Optional Designated Securities may be
exercised only by written notice from the Representatives to the Designated
Trust and the Guarantor, given within a period specified in the Pricing
Agreement, setting forth the aggregate number of Optional Designated Securities
to be purchased and the date on which such Optional Designated Securities are to
be delivered, as determined by the Representatives but in no event earlier than
the First Time of Delivery (as defined in Section 3 hereof) or, unless the
Representatives, the Guarantor and the Designated Trust otherwise agree in
writing, earlier than or later than the respective number of business days after
the date of such notice set forth in such Pricing Agreement.
The number of Optional Designated Securities to be added to the number of
Firm Designated Securities to be purchased by each Underwriter as set forth in
Schedule I to the Pricing Agreement applicable to such Designated Securities
shall be, in each case, the number of Optional Designated Securities which each
of the Guarantor and the Designated Trust has been advised by the
Representatives have been attributed to such Underwriter, provided that, if each
of the Guarantor and the Designated Trust has not been so advised, the number of
Optional Designated Securities to be so added shall be, in each case, that
proportion of Optional Designated Securities which the number of Firm Designated
Securities to be purchased by such Underwriter under such Pricing Agreement
bears to the aggregate number of Firm Designated Securities (rounded as the
Representatives may determine to the nearest 100 securities). The total number
of Designated Securities to be purchased by all the Underwriters pursuant to
such Pricing Agreement shall be the aggregate number of Firm Designated
Securities set forth in Schedule I to such Pricing Agreement plus the aggregate
number of Optional Designated Securities which the Underwriters elect to
purchase.
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3. Designated Securities to be purchased by each Underwriter pursuant to
the Pricing Agreement relating thereto, in definitive form to the extent
practicable, and in such authorized denominations and registered in such names
as the Representatives may request upon at least forty-eight hours' prior notice
to the Designated Trust, shall be delivered by or on behalf of the Designated
Trust to the Representatives for the account of such Underwriter, against
payment by such Underwriter or on its behalf of the purchase price therefor by
certified or official bank check or checks, payable to the order of the
Designated Trust in the funds specified in such Pricing Agreement, all in the
manner and at the place and time and date specified in such Pricing Agreement or
at such other place and time and date as the Representatives and the Designated
Trust may agree upon in writing. Such time and date for delivery of Firm
Designated Securities pursuant to the Pricing Agreement relating thereto is
herein called the "First Time of Delivery," such time and date for delivery of
Optional Designated Securities, if not the First Time of Delivery, is herein
called the "Second Time of Delivery," and each such time and date is herein
called the "Time of Delivery."
4. The Designated Trust and the Guarantor jointly and severally agree
with each of the Underwriters of any Designated Securities:
(a) To prepare the Prospectus as amended and supplemented in relation
to the applicable Designated Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under the
Act not later than the Commission's close of business on the second business day
following the execution and delivery of the Pricing Agreement relating to the
applicable Designated Securities or, if applicable, such earlier time as may be
required by Rule 424(b); to make no further amendment or any supplement to the
Registration Statement or Prospectus as amended or supplemented after the date
of the Pricing Agreement relating to such Securities and prior to the Time of
Delivery for such Securities which shall be disapproved by the Representatives
for such Securities promptly after reasonable notice thereof; to advise the
Representatives promptly of any such amendment or supplement after such Time of
Delivery and furnish the Representatives with copies thereof; to file promptly
all reports and any definitive proxy or information statements required to be
filed by the Guarantor with the Commission pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act for so long as the delivery of a prospectus is
required in connection with the offering or sale of such Securities, and during
such same period to advise the Representatives, promptly after it receives
notice thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or suspending the use of
any prospectus relating to the Securities, of the suspension of the
qualification of such Securities or the Subordinated Debentures issuable upon
exchange of the Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information; and, in the event of the
issuance of any such stop order or of any such order preventing or suspending
the use of any prospectus relating to the Securities or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal;
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(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities or the
Subordinated Debentures issuable upon exchange of the Securities for offering
and sale under the securities laws of such jurisdictions as the Representatives
may request and to comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long as may be necessary
to complete the distribution of such Securities, provided that in connection
therewith neither the Designated Trust nor the Guarantor shall be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus as
amended or supplemented in such quantities as the Representatives may from time
to time reasonably request, and, if the delivery of a prospectus is required at
any time in connection with the offering or sale of the Securities or the
Subordinated Debentures issuable upon exchange of the Securities and if at such
time any event shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus or to
file under the Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act, the Exchange Act or the Trust
Indenture Act, to notify the Representatives and, upon the request of the
Representatives, to file such document and to prepare and furnish without charge
to each Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such statement
or omission or effect such compliance;
(d) In the case of the Guarantor, to make generally available to its
security holders as soon as practicable, but in any event not later than
eighteen months after the effective date of the Registration Statement (as
defined in Rule 158(c)), an earnings statement of the Guarantor and its
subsidiaries (which need not be audited) complying with Section 11(a) of the Act
and the rules and regulations of the Commission thereunder (including, at the
option of the Guarantor, Rule 158);
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and including the
later of (i) the termination of trading restrictions for such Designated
Securities, as notified to the Guarantor by the Representatives and (ii) 30 days
after the last Time of Delivery for such Designated Securities, not to offer,
sell, contract to sell or otherwise dispose of, except as provided hereunder,
any Securities, any other beneficial interests in the assets of the Designated
Trust, or any preferred securities or any other securities of the Designated
Trust or the Guarantor, as the case may be, that are substantially similar to
such Designated Securities (including any guarantee of such securities) or any
securities that are convertible into or exchangeable for, or that represent the
right to receive securities, preferred securities or any such substantially
similar securities of either the Designated Trust or the Guarantor that are
subordinated to the Senior Debt (as defined in the Indenture) of the
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Guarantor in a manner substantially similar to the subordination of the
Subordinated Debentures without the prior written consent of the
Representatives;
(f) In the case of the Guarantor, to issue the Guarantee concurrently
with the issue and sale of the Securities as contemplated herein or in the
Pricing Agreement; and
(g) To use its best efforts to list, subject to notice of issuance,
the Securities on the New York Stock Exchange.
5. The Guarantor covenants and agrees with the several Underwriters that
the Guarantor will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Trusts' and the Guarantor's counsel and
accountants in connection with the registration of the Securities, the
Guarantees and the Subordinated Debentures under the Act and all other expenses
in connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, any Pricing Agreement, any Trust Agreement,
any Indenture, any Guarantee, any Blue Sky or similar investment surveys or
memoranda and any other documents in connection with the offering, purchase,
sale and delivery of the Securities; (iii) all reasonable expenses in connection
with the qualification of the Securities, the Guarantees and the Subordinated
Debentures for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky and legal investment surveys; (iv) any fees charged by securities
rating services for rating the Securities and the Subordinated Debentures; (v)
any filing fees incident to, and the fees and disbursements of counsel for the
Underwriters in connection with, any required reviews by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Securities and the issuance of the Guarantees and the Subordinated Debentures;
(vi) the cost of preparing the Securities and the Subordinated Debentures; (vii)
the fees and expenses of any Trustee, Debenture Trustee and Guarantee Trustee,
and any agent of any trustee and the fees and disbursements of counsel for any
trustee in connection with any Trust Agreement, Indenture, Guarantee and the
Securities; (viii) the cost of qualifying the Securities with The Depository
Trust Company; (ix) all fees and expenses in connection with the listing of the
Securities on the New York Stock Exchange and the cost of registering the
Securities under Section 12 of the Exchange Act; and (x) all other costs and
expenses incident to the performance of its obligations hereunder and under any
Over-allotment Option which are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in this Section,
Section 8 and Section 11 hereof, the Underwriters will pay all of their own
costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Securities by them, and any advertising expenses connected
with any offers they may make.
6. The obligations of the Underwriters of any Designated Securities under
the Pricing Agreement relating to such Designated Securities shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of
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the Designated Trust and the Guarantor in or incorporated by reference in the
Pricing Agreement relating to such Designated Securities are, at and as of
the date of the Pricing Agreement and at the respective Time of Delivery for
such Designated Securities, true and correct, the condition that the
Designated Trust and the Guarantor shall have performed all of their
respective obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with Section
4(a) hereof; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission; and all
requests for additional information on the part of the Commission shall have
been complied with to the Representatives' reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions, dated the respective Time of Delivery
for such Designated Securities, with respect to the incorporation of the
Guarantor and the formation of the Designated Trust, the validity of the
Designated Securities, the Subordinated Debentures, the Guarantee, the
Registration Statement, the Prospectus as amended or supplemented and other
related matters as the Representatives may reasonably request, and such counsel
shall have received such papers and information as they may reasonably request
to enable them to pass upon such matters;
(c) Xxxx X. Xxxxxx, Esq. or the then General Counsel for the
Guarantor, shall have furnished to the Representatives his or her written
opinion, dated the respective Time of Delivery for such Designated Securities,
in form and substance satisfactory to the Representatives, to the effect that:
(i) The Guarantor and each Significant Subsidiary has been duly
incorporated and is validly existing as a corporation under the laws
of the jurisdiction of its incorporation, with power and authority
(corporate and other) to own its properties and conduct its business
as described in the Prospectus as amended or supplemented;
(ii) Except as described in the Prospectus, there is no action,
suit or proceeding pending, nor to the best of such counsel's
knowledge, is there any action, suit or proceeding threatened, which
might reasonably be expected to result in a material adverse change in
the financial condition, results of operations or business of the
Guarantor and its subsidiaries taken as a whole or which is required
to be disclosed in the Registration Statement;
(iii) This Agreement and the Pricing Agreement with respect to
the Designated Securities have been duly authorized, executed and
delivered by the Designated Trust and the Guarantor;
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(iv) The issuance by the Guarantor of the Guarantee and the
Subordinated Debentures, the compliance by the Guarantor with all of
the provisions of this Agreement, the execution, delivery and
performance by the Guarantor of the Guarantor Agreements and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any material
indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument known to such counsel to which the Guarantor
or any of its subsidiaries is a party or by which the Guarantor or any
of its subsidiaries is bound or to which any of the property or assets
of the Guarantor or any of its subsidiaries is subject, except for
such conflicts, breaches, violations or defaults as would not,
individually or in the aggregate, have a material adverse effect on
the consolidated financial position of the Guarantor and its
subsidiaries or the consummation by the Guarantor of the transactions
contemplated by this Agreement, the Pricing Agreement or any Guarantor
Agreement, nor will such actions result in any violation of the
provisions of the Guarantor's Articles of Incorporation or by-laws or
any statute or any order, rule or regulation known to such counsel of
any court or governmental agency or body (including any insurance
regulatory agency or body (having jurisdiction over the Guarantor or
any of its subsidiaries or any of their properties;
(v) The Guarantor Agreements have each been duly authorized,
executed and delivered by the parties thereto and constitute valid and
legally binding obligations of the Guarantor, enforceable in
accordance with their respective terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization, moratorium and other laws of
general applicability relating to or affecting creditors' rights and
to general equity principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law); the
Guarantor Agreements conform to the descriptions thereof in the
Prospectus as amended or supplemented; the Subordinated Debentures are
entitled to the benefits provided by the Indenture; and the Trust
Agreement, the Indenture and the Guarantee have been duly qualified
under the Trust Indenture Act;
(vi) The Designated Securities have been duly authorized by the
Depositor on behalf of the Designated Trust; the issue and sale of the
Designated Securities and the compliance by the Designated Trust with
all of the provisions of the Designated Securities, the Trust
Agreement, this Agreement and the Pricing Agreement with respect to
the Designated Securities, the purchase by the Designated Trust of the
Subordinated Debentures and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any agreement or instrument known to such
counsel to which the Designated Trust is a party or by which the
Designated Trust is bound or to which any of the property or assets of
the Designated Trust is subject;
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(vii) No consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency or
body is required for the issue of the Guarantee or the consummation by
the Guarantor of the transactions contemplated by this Agreement or
such Pricing Agreement or the Guarantor Agreements, except such as
have been obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications
as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Designated
Securities by the Underwriters;
Such counsel shall also furnish you with a letter to the effect that, as
counsel to the Guarantor, he has no reason to believe that, as of its effective
date, the Registration Statement or any further amendment thereto made by the
Guarantor or the Designated Trust prior to the Time of Delivery (other than the
financial statements and related schedules and other financial data therein, as
to which such counsel need not comment) contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that, as of its
date, the Prospectus as amended or supplemented or any further amendment or
supplement thereto made by the Guarantor or the Designated Trust prior to the
Time of Delivery (other than the financial statements and related schedules and
other financial data therein, as to which such counsel need not comment)
contained an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in light of the
circumstances in which they were made, not misleading or that, as of the Time of
Delivery, either the Registration Statement or the Prospectus as amended or
supplemented or any further amendment or supplement thereto made by the
Guarantor or the Designated Trust prior to the Time of Delivery (other than the
financial statements and related schedules and other financial data therein, as
to which such counsel need not comment) contains an untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances in which they were made, not
misleading; and such counsel does not know of any amendment to the Registration
Statement required to be filed or any contracts or other documents of a
character required to be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the Prospectus as amended or
supplemented or required to be described in the Registration Statement or the
Prospectus as amended or supplemented which are not filed or incorporated by
reference or described as required; it being understood that such counsel may
state that he has not independently verified factual statements in the
Prospectus (or any such amendment or supplement) and that no comment need be
given as to the portion of the Registration Statement which shall constitute the
Form T-1;
(d) Xxxxxxxxxxxx Xxxx & Xxxxxxxxx, Counsel for the Designated Trust
and the Guarantor, shall have furnished to the Representatives their written
opinion, dated the respective Time of Delivery for such Designated Securities,
in form and substance satisfactory to the Representatives, to the effect that:
(i) The Guarantor and each Significant Subsidiary has been duly
incorporated and is validly existing as a corporation under the laws
of the
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jurisdiction of its incorporation, with power and authority
(corporate and other) to own its properties and conduct its business
as described in the Prospectus as amended or supplemented;
(ii) Except as described in the Prospectus, there is no action,
suit or proceeding pending, nor to the best of such counsel's
knowledge, is there any action, suit or proceeding threatened, which
might reasonably be expected to result in a material adverse change in
the financial condition, results of operations or business of the
Guarantor and its subsidiaries taken as a whole or which is required
to be disclosed in the Registration Statement;
(iii) This Agreement and the Pricing Agreement with respect to
the Designated Securities have been duly authorized, executed and
delivered by the Designated Trust and the Guarantor;
(iv) The issuance by the Guarantor of the Guarantee and the
Subordinated Debentures, the compliance by the Guarantor with all of
the provisions of this Agreement, the execution, delivery and
performance by the Guarantor of the Guarantor Agreements and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any material
indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument known to such counsel to which the Guarantor
or any of its Significant Subsidiaries is a party or by which the
Guarantor or any of its Significant Subsidiaries is bound or to which
any of the property or assets of the Guarantor or any of its
Significant Subsidiaries is subject, except for such conflicts,
breaches, violations or defaults as would not, individually or in the
aggregate, have a material adverse effect on the consolidated
financial position of the Guarantor and its subsidiaries or the
consummation by the Guarantor of the transactions contemplated by this
Agreement, the Pricing Agreement or any Guarantor Agreement, nor will
such actions result in any violation of the provisions of the
Guarantor's Articles of Incorporation or by-laws or any statute or any
order, rule or regulation known to such counsel of any court or
governmental agency or body (including any insurance regulatory agency
or body (having jurisdiction over the Guarantor or any of its
Significant Subsidiaries or any of their properties;
(v) The Guarantor Agreements have each been duly authorized,
executed and delivered by the parties thereto and constitute valid and
legally binding obligations of the Guarantor, enforceable in
accordance with their respective terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization, moratorium and other laws of
general applicability relating to or affecting creditors' rights and
to general equity principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law); the
Guarantor Agreements conform to the descriptions thereof in the
Prospectus as amended or supplemented; the
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Subordinated Debentures are entitled to the benefits provided by the
Indenture; and the Trust Agreement, the Indenture and the Guarantee
have been duly qualified under the Trust Indenture Act;
(vi) The Designated Securities have been duly authorized by the
Depositor on behalf of the Designated Trust; the issue and sale of the
Designated Securities and the compliance by the Designated Trust with
all of the provisions of the Designated Securities, the Trust
Agreement, this Agreement and the Pricing Agreement with respect to
the Designated Securities, the purchase by the Designated Trust of the
Subordinated Debentures and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any agreement or instrument known to such
counsel to which the Designated Trust is a party or by which the
Designated Trust is bound or to which any of the property or assets of
the Designated Trust is subject;
(vii) The Subordinated Debentures, in the form certified by the
Guarantor to be true and correct copies, are in the forms prescribed
in or pursuant to the Indenture, have been duly and validly authorized
by the Guarantor by all necessary corporate action and, when
completed, executed and authenticated as specified in or pursuant to
the Indenture and issued and delivered upon exchange of the Securities
will be valid and binding obligations of the Guarantor, enforceable in
accordance with their terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization, moratorium and other laws of
general applicability relating to or affecting creditors' rights and
to general equity principles (regardless of whether such
enforceability is considered in a proceeding at equity or in law);
(viii) The Registration Statement is effective under the Act
and, to the best of such counsel's knowledge, no stop order suspending
the effectiveness of the Registration Statement has been issued under
the Act or proceedings therefor initiated or threatened by the
Commission;
(ix) The statements set forth in the Prospectus under the
captions "Description of Junior Subordinated Debentures", "Description
of Preferred Securities", "Description of Guarantees", "Description of
Corresponding Junior Subordinated Debentures" and "Relationship Among
the Preferred Securities, the Corresponding Junior Subordinated
Debentures and the Guarantees" and "Plan of Distribution" and in the
Prospectus Supplement under the captions "Certain Terms of Series __
TOPrS", "Certain Terms of Series __ Subordinated Debentures" and
"Underwriting" insofar as they purport to summarize certain provisions
of documents specifically referred to therein, are accurate summaries
of such provisions in all material respects.
-16-
(x) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required for the issue of the Guarantee or the consummation by the
Guarantor of the transactions contemplated by this Agreement or such
Pricing Agreement or the Guarantor Agreements, except such as have
been obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications
as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Designated
Securities by the Underwriters;
(xi) Neither the Designated Trust nor the Guarantor is now, and
giving effect to the transactions contemplated by this Agreement, the
Prospectus, and the application of the proceeds from the sale of the
Designated Securities will be, an "investment company" or an entity
controlled by an "investment company" required to be registered under
the Investment Company Act;
(xii) The documents incorporated by reference in the Prospectus
as amended or supplemented (other than the financial statements and
related schedules and other financial data therein, as to which such
counsel need express no opinion), when they became effective or were
filed with the Commission, as the case may be, complied as to form in
all material respects with the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder; and based upon specified participation of such counsel in
connection with the preparation of the Registration Statement, such
counsel has no reason to believe that any of such documents, when they
became effective or were so filed, as the case may be, contained, in
the case of a registration statement which became effective under the
Act, an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and, in the case of other documents
which were filed under the Act or the Exchange Act with the
Commission, an untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements therein in
the light of the circumstances under which they were made when such
documents were so filed, not misleading; it being understood that such
counsel need express no opinion as to the financial statements or
other financial data included in any of the documents mentioned in
this clause and that such counsel may state that he has not
independently verified factual statements in any such documents; and
Such counsel shall also furnish you with a letter to the effect that, the
Registration Statement and the Prospectus as amended or supplemented and any
further amendments and supplements thereto made by the Guarantor or the
Designated Trust prior to the Time of Delivery for the Designated Securities
(other than the financial statements and related schedules and other financial
data therein, as to which such counsel need not comment) comply as to form in
all material respects with the requirements of the Act and the Trust Indenture
Act and the rules and
-17-
regulations thereunder; based upon specified participation of such counsel in
connection with the preparation of the Registration Statement and the
Prospectus, such counsel has no reason to believe that, as of its effective
date, the Registration Statement or any further amendment thereto made by the
Guarantor or the Designated Trust prior to the Time of Delivery (other than
the financial statements and related schedules and other financial data
therein, as to which such counsel need not comment) contained an untrue
statement of a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not misleading
or that, as of its date, the Prospectus as amended or supplemented or any
further amendment or supplement thereto made by the Guarantor or the
Designated Trust prior to the Time of Delivery (other than the financial
statements and related schedules and other financial data therein, as to
which such counsel need not comment) contained an untrue statement of a
material fact or omitted to state a material fact necessary in order to make
the statements therein, in light of the circumstances in which they were
made, not misleading or that, as of the Time of Delivery, either the
Registration Statement or the Prospectus as amended or supplemented or any
further amendment or supplement thereto made by the Guarantor or the
Designated Trust prior to the Time of Delivery (other than the financial
statements and related schedules and other financial data therein, as to
which such counsel need not comment) contains an untrue statement of a
material fact or omits to state a material fact necessary in order to make
the statements therein, in light of the circumstances in which they were
made, not misleading; and such counsel does not know of any amendment to the
Registration Statement required to be filed or any contracts or other
documents of a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by reference into the
Prospectus as amended or supplemented or required to be described in the
Registration Statement or the Prospectus as amended or supplemented which are
not filed or incorporated by reference or described as required; it being
understood that such counsel may state that such counsel has not
independently verified factual statements in the Prospectus (or any such
amendment or supplement);
(e) Xxxxxxxx, Xxxxxx & Finger, special Delaware Counsel to the
Designated Trust and the Guarantor, shall have furnished to you, the Guarantor
and the Designated Trust their written opinion, dated the respective Time of
Delivery, in form and substance satisfactory to you, to the effect that:
(i) The Designated Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware
Business Trust Act, and all filings required under the laws of the
State of Delaware with respect to the creation and valid existence of
the Designated Trust as a business trust have been made;
(ii) Under the Delaware Business Trust Act and the Trust
Agreement, the Designated Trust has the power and authority to own
property and conduct its business, all as described in the Prospectus;
(iii) The Trust Agreement constitutes a valid and legally
binding obligation of the Guarantor and the Trustees, enforceable
against the Guarantor and the Trustees, in accordance with its terms,
subject, as to enforcement, to bankruptcy,
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insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(iv) Under the Delaware Business Trust Act and the Trust
Agreement, the Designated Trust has the power and authority to (a)
execute and deliver the Pricing Agreement (incorporating this
Underwriting Agreement) and to perform its obligations under this
Underwriting Agreement and the Pricing Agreement, and (b) issue and
perform its obligations under the Designated Securities and the Common
Securities;
(v) Under the Delaware Business Trust Act and the Trust
Agreement, the execution and delivery by the Designated Trust of the
Pricing Agreement (incorporating this Underwriting Agreement) and the
performance by the Designated Trust of its obligations thereunder,
have been duly authorized by all necessary action on the part of the
Designated Trust;
(vi) The Designated Securities have been duly authorized by the
Trust Agreement and are duly and validly issued and, subject to the
qualifications set forth herein, fully paid and nonassessable
beneficial interests in the Designated Trust and are entitled to the
benefits provided by the Trust Agreement; the Securityholders, as
beneficial owners of the Designated Trust, will be entitled to the
same limitation of personal liability extended to stockholders of
private corporations for profit organized under the General
Corporation Law of the State of Delaware; provided that such counsel
may note that the Securityholders may be obligated, pursuant to the
Trust Agreement, to (a) provide indemnity and/or security in
connection with and pay taxes or governmental charges arising from
transfers or exchanges of Securities Certificates and the issuance of
replacement Securities Certificates and (b) provide security and
indemnity in connection with requests of or directions to the Property
Trustee (as defined in the Trust Agreement) to exercise its rights and
remedies under the Trust Agreement;
(vii) The Common Securities have been duly authorized by the
Trust Agreement and are validly issued and represent beneficial
interests in the Designated Trust;
(viii) Under the Delaware Business Trust Act and the Trust
Agreement, the issuance of the Designated Securities and the Common
Securities is not subject to preemptive rights;
(ix) The issuance and sale by the Designated Trust of Designated
Securities and the Common Securities, the execution and delivery of
the Pricing Agreement (incorporating this Underwriting Agreement) and
performance by the Designated Trust of this Underwriting Agreement and
the Pricing Agreement, the
-19-
consummation by the Designated Trust of the transactions contemplated
thereby and compliance by the Designated Trust with its obligations
thereunder will not violate (a) any of the provisions of the
Certificate of Trust of the Designated Trust or the Trust Agreement,
or (b) any applicable Delaware law or administrative regulation;
(x) Assuming that the Designated Trust derives no income from or
connected with services provided within the State of Delaware and has
no assets, activities (other than maintaining the Delaware Trustee and
the filing of documents with the Secretary of State of the State of
Delaware) or employees in the State of Delaware, no authorization,
approval, consent or order of any Delaware court or governmental
authority or agency is required to be obtained by the Designated Trust
solely in connection with the issuance and sale of the Designated
Securities and the Common Securities. In rendering the opinion
expressed in this paragraph (x), such counsel need express no opinion
concerning the securities laws of the State of Delaware;
(xi) Assuming that the Designated Trust derives no income from
or connected with services provided within the State of Delaware and
has no assets, activities (other than maintaining the Delaware Trustee
and the filing of documents with the Secretary of State of the State
of Delaware) or employees in the State of Delaware, the
Securityholders (other than those holders of the Securities who reside
or are domiciled in the State of Delaware) will have no liability for
income taxes imposed by the State of Delaware solely as a result of
their participation in the Designated Trust, and the Designated Trust
will not be liable for any income tax imposed by the State of
Delaware;
(f) Xxxxxxxxxxxx Xxxx & Xxxxxxxxx, tax counsel for the Designated
Trust and the Guarantor, shall have furnished to you their written opinion,
dated the respective Time of Delivery, in form and substance satisfactory to
you, to the effect that such firm confirms its opinion set forth in the
Prospectus under the caption "Certain Federal Income Tax Consequences";
(g) At the respective Time of Delivery for such Designated
Securities, and, if so specified in the Pricing Agreement, on the date of the
Pricing Agreement, the independent accountants of the Guarantor who have
certified the financial statements of the Guarantor and its subsidiaries
included or incorporated by reference in the Registration Statement shall have
furnished to the Representatives a letter, dated such Time of Delivery and, if
applicable, such date of the Pricing Agreement, respectively, to the effect set
forth in Annex II hereto, and with respect to such letter dated such Time of
Delivery, as to such other matters as the Representatives may reasonably request
and in form and substance satisfactory to the Representatives;
(h) Except as contemplated in the Prospectus, since the respective
dates as of which information is given in the Prospectus as amended or
supplemented until the respective Time of Delivery of the Designated Securities,
there shall not have been any changes in the
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consolidated capital stock (other than issuances of capital stock upon
exercise of options and stock appreciation rights or pursuant to existing
employee benefit plans and upon conversions of convertible securities which
were outstanding on the date of the latest balance sheet included or
incorporated by reference in the Prospectus) or any increase in the
consolidated long-term debt of the Guarantor and its subsidiaries in excess
of 5% or any change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position, stockholders'
equity or results of operations of the Guarantor and its subsidiaries taken
as a whole, otherwise than as set forth or contemplated in the Prospectus as
amended or supplemented, the effect of which, in any such case is in the
judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus as amended or supplemented;
(i) On or after the date of the Pricing Agreement relating to the
Designated Securities until the respective Time of Delivery of the Designated
Securities (i) no downgrading shall have occurred in the rating accorded the
Guarantor's debt securities or preferred stock by any "nationally recognized
statistical rating organization," as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall
have publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Guarantor's debt securities or
preferred stock.
(j) On or after the date of the Pricing Agreement relating to the
Designated Securities until the respective Time of Delivery of the Designated
Securities there shall not have occurred any of the following: (i) a suspension
or material limitation in trading in securities generally on the New York Stock
Exchange; (ii) a suspension or material limitation in trading in the Guarantor's
securities on the New York Stock Exchange; (iii) a general moratorium on
commercial banking activities declared by either Federal or New York State
authorities; or (iv) the outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a national emergency or
war, if the effect of any such event specified in this Clause (iv) in the
judgment of the Representatives makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Designated Securities on the
terms and in the manner contemplated in the Prospectus as amended or
supplemented relating to the Designated Securities;
(k) The Designated Securities to be sold by the Designated Trust at
the respective Time of Delivery shall have been duly listed, subject to notice
of issuance, on the New York Stock Exchange; and
(l) The Designated Trust and the Guarantor shall have furnished or
caused to be furnished to the Representatives at the respective Time of Delivery
for the Designated Securities certificates of officers of the Designated Trust
and the Guarantor satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Designated Trust and the Guarantor herein
at and as of such Time of Delivery, as to the performance by the Designated
Trust and the Guarantor of all of their obligations hereunder to be performed at
or
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prior to such Time of Delivery, as to the matters set forth in subsections
(a) and (h) of this Section and as to such other matters as the
Representatives may reasonably request.
7. (a) The Designated Trust and the Guarantor will jointly and severally
indemnify and hold harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Designated Securities, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such action or claim as such expenses are
incurred; provided, however, that neither the Designated Trust nor the Guarantor
shall be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Designated Securities, or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Designated Trust or
the Guarantor by any Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus as amended or supplemented
relating to such Securities and; provided, further, that neither the Designated
Trust nor the Guarantor shall be liable to any Underwriter under the indemnity
agreement in this subsection (a) with respect to any loss, claim, damage or
liability resulting from an untrue or alleged untrue statement or omission or
alleged omission of a material fact in a Preliminary Prospectus to the extent
that a court of competent jurisdiction has found by final and nonappealable
order that any such loss, claim, damage or liability of such Underwriter results
from the fact that such Underwriter sold Securities to a person to whom there
was not sent or given, at or prior to the written confirmation of such sale, a
copy of the Prospectus as then amended or supplemented (excluding documents
incorporated by reference), if such Underwriter failed to make efforts generally
consistent with the then prevailing industry practice to effect such delivery
and (i) such delivery to such person is required by Section 5 of the Act, (ii)
the Designated Trust or the Guarantor has furnished copies of such Prospectus as
amended or supplemented to such Underwriter a reasonable period of time prior to
the Underwriter being required so to deliver such Prospectus as amended or
supplemented and (iii) such Prospectus as amended or supplemented corrected the
untrue or alleged untrue statement or omission or alleged omission of material
fact contained in the Preliminary Prospectus.
(b) Each Underwriter will indemnify and hold harmless the Designated
Trust and the Guarantor against any losses, claims, damages or liabilities to
which the Designated Trust or the Guarantor may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus,
-22-
any preliminary prospectus supplement, the Registration Statement, the
Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Designated Trust or the Guarantor by such
Underwriter through the Representatives expressly for use therein; and will
reimburse the Designated Trust or the Guarantor for any legal or other
expenses reasonably incurred by the Designated Trust or the Guarantor in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation; PROVIDED, HOWEVER, that an indemnified
party shall have the right to retain its own counsel, with reasonable fees and
expenses to be paid by the indemnifying party, if the indemnified party
reasonably believes that representation of such indemnified party by the counsel
retained by the indemnifying party would be inappropriate due to actual or
potential differing interests between such indemnified party and any other party
represented by such counsel in such proceeding (it being understood that in no
event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to one local counsel in each applicable
jurisdiction) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances).
No indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of any
judgment with respect to, any pending or threatened action or claim in respect
of which indemnification or contribution may be sought hereunder (whether or not
the indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does
-23-
not include any statement as to, or an admission of, fault, culpability or a
failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Designated Trust and the Guarantor on the one
hand and the Underwriters of the Designated Securities on the other from the
offering of the Designated Securities to which such loss, claim, damage or
liability (or action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Designated Trust and the Guarantor on the one hand and the
Underwriters of the Designated Securities on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Designated
Trust and the Guarantor on the one hand and such Underwriters on the other shall
be deemed to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by the Designated Trust less the
total underwriting compensation paid by the Guarantor bear to the total
underwriting discounts and commissions received by such Underwriters. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Designated Trust and the Guarantor on the one hand or such Underwriters on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Designated
Trust, the Guarantor and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by pro
rata allocation or by any other method of allocation (even if the Underwriters
were treated as one entity for such purpose) which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the applicable Designated Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters of Designated Securities in this subsection (d)
to contribute
-24-
are several in proportion to their respective underwriting obligations with
respect to such Securities and not joint.
(e) The obligations of the Designated Trust and the Guarantor under
this Section 7 shall be in addition to any liability which the Designated Trust
and the Guarantor may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section 7
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Guarantor, to each administrative trustee of the
Designated Trust and to each person, if any, who controls the Designated Trust
or the Guarantor within the meaning of the Act.
8. (a) If any Underwriter shall default in its obligation to purchase
the Firm Designated Securities or the Optional Designated Securities which it
has agreed to purchase under the Pricing Agreement relating to such Designated
Securities, the Representatives may in their discretion arrange for themselves
or another party or other parties to purchase such Designated Securities on the
terms contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such Firm
Designated Securities or such Optional Designated Securities, as the case may
be, then the Designated Trust and the Guarantor shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties satisfactory to the Representatives to purchase such Designated
Securities on such terms. In the event that, within the respective prescribed
period, the Representatives notify the Designated Trust and the Guarantor that
they have so arranged for the purchase of such Designated Securities, or the
Designated Trust and the Guarantor notifies the Representatives that it has so
arranged for the purchase of such Designated Securities, the Representatives or
the Designated Trust and the Guarantor shall have the right to postpone the Time
of Delivery for such Designated Securities for a period of not more than seven
days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus as amended or supplemented, or in any
other documents or arrangements, and the Designated Trust and the Guarantor
agree to file promptly any amendments or supplements to the Registration
Statement or the Prospectus which in the opinion of the Representatives may
thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like effect as if
such person had originally been a party to the Pricing Agreement with respect to
such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Firm Designated Securities or Optional Designated Securities, as the case
may be, of a defaulting Underwriter or Underwriters by the Representatives and
the Designated Trust and the Guarantor as provided in subsection (a) above, the
aggregate number of such Designated Securities which remains unpurchased does
not exceed one-eleventh of the aggregate number of the Firm Designated
Securities or Optional Designated Securities, as the case may be, to be
purchased at the respective Time of Delivery, then the Designated Trust and the
Guarantor shall have the right to require each non-defaulting Underwriter to
purchase the number of Firm Designated Securities or Optional Designated
Securities, as the case may be, which such Underwriter agreed to purchase
-25-
under the Pricing Agreement relating to such Designated Securities and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the number of Firm Designated Securities or Optional
Designated Securities, as the case may be, which such Underwriter agreed to
purchase under such Pricing Agreement) of the Firm Designated Securities or
Optional Designated Securities, as the case may be, of such defaulting
Underwriter or Underwriters for which such arrangements have not been made;
but nothing herein shall relieve a defaulting Underwriter from liability for
its default.
(c) If, after giving effect to any arrangements for the purchase of
the Firm Designated Securities or Optional Designated Securities, as the case
may be, of a defaulting Underwriter or Underwriters by the Representatives and
the Designated Trust and the Guarantor as provided in subsection (a) above, the
aggregate number of Firm Designated Securities or Optional Designated
Securities, as the case may be, which remains unpurchased exceeds one-eleventh
of the aggregate number of the Firm Designated Securities or Optional Designated
Securities, as the case may be, to be purchased at the respective Time of
Delivery, as referred to in subsection (b) above, or if the Designated Trust and
the Guarantor shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Firm Designated Securities or
Optional Designated Securities, as the case may be, of a defaulting Underwriter
or Underwriters, then the Pricing Agreement relating to such Firm Designated
Securities or Optional Designated Securities, as the case may be, shall
thereupon terminate, without liability on the part of any non-defaulting
Underwriter, the Designated Trust or the Guarantor, except for the expenses to
be borne by the Designated Trust, the Guarantor and the Underwriters as provided
in Section 6 hereof and the indemnity and contribution agreements in Section 8
hereof; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
9. The respective indemnities, agreements, representations, warranties
and other statements of the Designated Trust, the Guarantor and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Designated Trust, the Guarantor, or any officer or director
or controlling person of the Designated Trust or the Guarantor, and shall
survive delivery of and payment for the Securities.
10. If any Pricing Agreement or Over-allotment Option shall be terminated
pursuant to Section 8 hereof, neither the Designated Trust nor the Guarantor
shall then be under any liability to any Underwriter with respect to the Firm
Designated Securities or Optional Designated Securities covered by such Pricing
Agreement except as provided in Section 5 and Section 7 hereof; but, if for any
other reason, Designated Securities are not delivered by or on behalf of the
Designated Trust as provided herein, the Designated Trust and the Guarantor will
reimburse the Underwriters through the Representatives for all out-of-pocket
expenses approved in writing by the Representatives, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of such Designated Securities,
but the Designated Trust and the Guarantor shall then be under no further
liability to
-26-
any Underwriter with respect to such Designated Securities except as provided
in Section 5 and Section 7 hereof.
11. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement. All statements, requests,
notices and agreements hereunder shall be in writing, and if to the Underwriters
shall be delivered or sent by mail, telex or facsimile transmission to the
address of the Representatives as set forth in the Pricing Agreement; and if to
the Designated Trust or the Guarantor shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Designated Trust or the
Guarantor set forth in the Registration Statement: Attention: Corporate
Secretary, with a copy to Lincoln National Corporation, 000 Xxxx Xxxxx Xxxxxx,
Xxxx Xxxxx, Xxxxxxx 00000-0000. Attention: Office of the Treasurer, Facsimile
Transmission No. (000) 000-0000; provided, however, that any notice to an
Underwriter pursuant to Section 7(c) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Underwriter at its address set forth in
its Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Designated Trust and the Guarantor by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
12. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Designated Trust and the
Guarantor and, to the extent provided in Section 7 and Section 9 hereof, the
officers and directors of the Designated Trust or the Guarantor and each person
who controls the Designated Trust, the Guarantor or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
13. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
14. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
15. This Agreement and each Pricing Agreement may be executed by any one
or more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
-27-
ANNEX I
PRICING AGREEMENT
To the Underwriters named in
Schedule I to the Underwriting Agreement
c/o ____________________
________________________
________________________
__________ _____, _____
Dear Sirs:
Lincoln National Capital ___, a statutory business trust formed under the
laws of the State of Delaware (the "Designated Trust") and Lincoln National
Corporation, an Indiana corporation (the "Guarantor"), propose, subject to the
terms and conditions stated herein and in the Underwriting Agreement, dated
____________, 1998 (the "Underwriting Agreement"), between the Guarantor on the
one hand and the Underwriters named in Schedule I to the Underwriting Agreement,
on the other hand, to issue and sell to the Underwriters named in Schedule I
hereto (the "Underwriters") the Securities specified in Schedule II hereto (the
"Designated Securities" consisting of Firm Designated Securities and any
Optional Designated Securities the Underwriters may elect to purchase). Each of
the provisions of the Underwriting Agreement is incorporated herein by reference
in its entirety, and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as therein
defined), and also a representation and warranty as of the date of this Pricing
Agreement in relation to the Prospectus as amended or supplemented relating to
the Designated Securities which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you.
Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated to
act on behalf of the Representatives and on behalf of each of the Underwriters
of the Designated Securities pursuant to Section 12 of the Underwriting
Agreement and the address of the Representatives referred to in such Section 12
are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
-28-
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, (a) the Designated
Trust agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Designated
Trust, at the time and place and at the purchase price to the Underwriters set
forth in Schedule II hereto, the number of Firm Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto, and (b) in the
event and to the extent that the Underwriters shall exercise the election to
purchase Optional Designated Securities, as provided below, the Designated Trust
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Designated
Trust at the purchase price to the Underwriters set out in Schedule II hereto
that portion of the number of Optional Designated Securities as to which such
election shall have been exercised.
The Designated Trust hereby grants to each of the Underwriters the right to
purchase at their election up to the number of Optional Designated Securities
set forth opposite the name of such Underwriter in Schedule I hereto on the
terms referred to in the paragraph above for the sole purpose of covering
over-allotments in the sale of the Firm Designated Securities. Any such
election to purchase Optional Designated Securities may be exercised by written
notice from the Representatives to the Designated Trust and the Guarantor given
within a period of 10 calendar days after the date of this Pricing Agreement,
setting forth the aggregate number of Optional Designated Securities to be
purchased and the date on which such Optional Designated Securities are to be
delivered, as determined by the Representatives, but in no event earlier than
the First Time of Delivery or, unless the Representatives, the Guarantor and the
Designated Trust otherwise agree in writing, no earlier than two or later than
ten business days after the date of such notice.
If the foregoing is in accordance with your understanding, please sign and
return to us eight counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the
Underwriters, the Designated Trust and the Guarantor. It is understood that
your acceptance of
-29-
this letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of which
shall be submitted to the Guarantor for examination upon request, but without
warranty on the part of the Representatives as to the authority of the signers
thereof.
Very truly yours,
LINCOLN NATIONAL CORPORATION
By:_______________________________________
Name:
Title:
LINCOLN NATIONAL CAPITAL _____
By: Lincoln National Corporation, as Depositor
By:_______________________________________
Name:
Title:
Accepted as of the date hereof:
[Name(s) of Representative(s)]
As Representatives of the Underwriters Named in Schedule I hereto
___________________________________
On behalf of each of the Underwriters named on Schedule I hereto
-30-
SCHEDULE I
Number of Firm Number of
Designated Maximum Optional
Securities to be Designated Securities
Underwriters Purchased to be Purchased
------------ ---------------- ---------------------
[Names of Representatives] . . .
[Names of Underwriters] . . . .
---------------- ---------------------
Total . . . . . . . . . . .
---------------- ---------------------
---------------- ---------------------
-1-
SCHEDULE II
DESIGNATED TRUST:
Lincoln National Capital _________
TITLE OF DESIGNATED SECURITIES:
____% ____________________ Preferred Securities, Series ___
AGGREGATE PRINCIPAL AMOUNT:
Aggregate principal amount of Firm Designated Securities: $___________________
Maximum aggregate principal amount of Optional Designated Securities:
$__________________
PRICE TO PUBLIC:
______% of the principal amount of the Designated Securities
PURCHASE PRICE BY UNDERWRITERS:
______% of the principal amount of the Designated Securities
UNDERWRITERS' COMPENSATION:
$_____ per Designated Security
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
New York Clearing House same-day funds
ACCOUNTANTS' LETTER TO BE DELIVERED ON DATE OF PRICING AGREEMENT:
Yes.
TRUST AGREEMENT:
Amended and Restated Trust Agreement dated __________________, between the
Guarantor and the Trustees named therein
INDENTURE:
Junior Subordinated Indenture dated as of ____________________, between the
Guarantor and _________________, as Debenture Trustee (the "Indenture")
GUARANTEE:
Guarantee Agreement, dated as of _________________, between Guarantor and
Guarantee Trustee
MATURITY:
-1-
INTEREST RATE:
_____%
INTEREST PAYMENT DATES:
EXTENSION PERIOD:
REDEMPTION PROVISIONS:
[The redemption provisions set forth in Section 402 of the Trust Agreement
shall apply to the Designated Securities.]
SINKING FUND PROVISIONS:
No sinking fund provisions.
[FIRST] TIME OF DELIVERY:
10:00 a.m., New York City time _______ ___, ____
CLOSING LOCATION:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
NAMES AND ADDRESSES OF REPRESENTATIVES:
-2-
ANNEX II
ACCOUNTANTS' LETTER
Pursuant to Section 6(g) of the Underwriting Agreement, the Guarantor's
independent certified public accountants shall furnish letters to the effect
that:
(i) they are independent certified public accountants with respect to
the Guarantor and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) in their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, prospective
financial statements and/or pro forma financial information) examined by
them and included or incorporated by reference in the Registration
Statement or the Prospectus comply as to form in all material respects with
the applicable accounting requirements of the Act or the Exchange Act, as
applicable, and the related published rules and regulations thereunder;
and, if reasonably requested by the Representatives, they have made a
review in accordance with standards established by the American Institute
of Certified Public Accountants of the consolidated interim financial
statements, selected financial data, pro forma financial information,
prospective financial statements and/or condensed financial statements
derived from audited financial statements of the Guarantor for the periods
specified in such letter, as indicated in their reports thereon, copies of
which have been furnished to the representatives of the Underwriters (the
"Representatives");
(iii) they have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in the
Prospectus and/or included in the Guarantor's quarterly reports on Form
10-Q incorporated by reference into the Prospectus as indicated in their
reports thereon copies of which have been separately furnished to the
Representatives; and on the basis of specified procedures including
inquiries of officials of the Guarantor who have responsibility for
financial and accounting matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph (vi)(A)(i) below
comply as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published
rules and regulations, nothing came to their attention that caused them to
believe that the unaudited condensed consolidated financial statements do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the related
published rules and regulations;
(iv) the unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Guarantor
for the five most recent fiscal
-1-
years included in the Prospectus and included or incorporated by
reference in Item 2 of the Guarantor's Registration Statement on Form 10
or Item 6 of the Guarantor's Annual Report on Form 10-K for the most
recent fiscal year, as applicable, agrees with the corresponding amounts
(after restatement where applicable) in the audited consolidated
financial statements for the five such fiscal years which were included
or incorporated by reference in the Guarantor's Registration Statement
on Form 10 or the Guarantor's Annual Reports on Form 10-K for such
fiscal years, as applicable;
(v) on the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Guarantor and its subsidiaries, inspection of
the minute books of the Guarantor and its subsidiaries since the date of
the latest audited financial statements included or incorporated by
reference in the Prospectus, inquiries of officials of the Guarantor and
its subsidiaries responsible for financial accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows included
or incorporated by reference in the Guarantor's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus (if any) do not comply as to form in
all material respects with the applicable accounting requirements of the
Exchange Act as it applies to Form 10-Q and the related published rules and
regulations thereunder or are not in conformity with generally accepted
accounting principles applied on a basis substantially consistent with the basis
for the audited consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included or incorporated by reference
in the Guarantor's Registration Statement on Form 10 or the Guarantor's Annual
Report on Form 10-K for the most recent fiscal year, as applicable;
(B) any other unaudited income statement data and balance sheet items
included in the Prospectus do not agree with the corresponding items in the
unaudited consolidated financial statements from which such data and items were
derived, and any such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding amounts in the
audited consolidated financial statements included or incorporated by reference
in the Guarantor's Registration Statement on Form 10 or the Guarantor's Annual
Report on Form 10-K for the most recent fiscal year, as applicable;
(C) the unaudited financial statements which were not included in the
Prospectus but from which were derived the unaudited condensed financial
statements referred to in Clause (A) and any unaudited income statement data and
balance sheet items included in the Prospectus and referred to in Clause (B)
were not determined on a basis substantially consistent with the basis for the
audited financial statements included or incorporated by reference in the
Guarantor's Registration Statement on Form 10 or the Guarantor's Annual Report
on Form 10-K for the most recent fiscal year, as applicable;
-2-
(D) any unaudited pro forma consolidated condensed financial statements
included or incorporated by reference in the Prospectus do not comply as to form
in all material respects with the applicable accounting requirements of the Act
and the published rules and regulations thereunder or the pro forma adjustments
have not been properly applied to the historical amounts in the compilation of
those statements;
(E) as of a specified date not more than five days prior to the date of
such letter, there have been any changes in the consolidated capital stock
(other than issuances of capital stock upon exercise of options and stock
appreciation rights or pursuant to existing benefit plans and upon conversions
of convertible securities which were outstanding on the date of the latest
balance sheet included or incorporated by reference in the Prospectus) or any
increase in the consolidated short-term borrowings or long-term debt of the
Guarantor and its subsidiaries or any other items specified by the
Representatives, or any decreases in total investments, total assets or any
other items specified by the Representatives, in each case as compared with
amounts shown in the latest balance sheet included or incorporated by reference
in the Prospectus, except in each case for changes, increases or decreases which
the Prospectus discloses have occurred or may occur or which are described in
such letter; and
(F) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus to the specified date
referred to in Clause (E) there were any decreases in consolidated net revenues
or operating profit or the total or per share amounts of consolidated net income
or other items specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with the comparable
period of the preceding year and with any other period of corresponding length
specified by the Representatives, except in each case for increases or decreases
which the Prospectus discloses have occurred or may occur or which are described
in such letter; and
(vi) in addition to the examination referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (v) above, they have carried out
certain specified procedures, not constituting an examination in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representatives which are derived from the general accounting records of
the Guarantor and its subsidiaries, which appear in the Prospectus
(excluding documents incorporated by reference), or in Part II of, or in
exhibits and schedules to, the Registration Statement specified by the
Representatives or in documents incorporated by reference in the Prospectus
specified by the Representatives, and have compared certain of such
amounts, percentages and financial information with the accounting records
of the Guarantor and its subsidiaries and have found them to be in
agreement.
All references in this Annex II to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of the letter delivered on
the date of the Pricing Agreement, if so
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delivered, for purposes of such letter and to the Prospectus as amended
or supplemented (including the documents incorporated by reference
therein) in relation to the applicable Designated Securities for
purposes of the letter delivered at the Time of Delivery for such
Designated Securities.
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