Exhibit 1.1
THE HARTFORD FINANCIAL SERVICES GROUP, INC.
COMMON STOCK
($0.01 PAR VALUE PER SHARE)
UNDERWRITING AGREEMENT
GENERAL TERMS AND CONDITIONS
May 19, 2003
To the Underwriters
named in Schedule I to the Pricing Agreement
attached hereto as Annex I.
Ladies and Gentlemen:
From time to time The Hartford Financial Services Group, Inc., a
Delaware corporation (the "COMPANY"), proposes to enter into one or more Pricing
Agreements in the form of Annex I hereto (each, a "PRICING AGREEMENT") which
incorporates by reference these Underwriting Agreement General Terms and
Conditions (this "UNDERWRITING AGREEMENT"), with such additions and deletions as
the parties thereto may determine, and, subject to the terms and conditions
stated herein and therein, to issue and sell to the firms named in Schedule I to
the applicable Pricing Agreement (such firms constituting the "UNDERWRITERS"
with respect to such Pricing Agreement and the securities specified therein)
certain shares (the "SHARES") of Common Stock, $0.01 par value per share, of the
Company (the "COMMON STOCK") specified in Schedule II to such Pricing Agreement
(with respect to such Pricing Agreement, the "FIRM SHARES"). If specified in
such Pricing Agreement, the Company may grant to the Underwriters the right to
purchase at their election an additional number of Shares, specified in such
Pricing Agreement as provided in Section 3 hereof (the "OPTIONAL SHARES"). The
Firm Shares and the Optional Shares, if any, which the Underwriters elect to
purchase pursuant to Section 3 hereof are herein collectively called the
"DESIGNATED SHARES".
The terms and rights of any particular issuance of Designated Shares
shall be as specified in the Pricing Agreement relating thereto.
1. Particular sales of Designated Shares may be made from time to
time to the Underwriters of such Shares, for whom the firms designated as
representatives of the Underwriters of such Shares 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 an Underwriter or Underwriters who act without any firm
being designated as its or their representatives. The Underwriting Agreement
shall not be construed as an obligation of the Company to sell any of the Shares
or as an obligation of the Underwriters to purchase any of the Shares. The
obligation of the Company to issue and sell any of the Shares and the obligation
of any of the Underwriters to purchase any of the Shares shall be evidenced by
the Pricing Agreement with respect to the Designated Shares specified therein.
Each Pricing Agreement shall specify the aggregate number of the Designated
Shares, the initial public offering price of such Designated Shares or the
manner of determining such price, the purchase price to the Underwriters of such
Designated Shares, the names of the Underwriters of such Designated Shares, the
names of the Representatives of such Underwriters, the number of such Designated
Shares 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 Firm and Optional Shares, if any, and payment
therefor. 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 any Pricing Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each
of the Underwriters that:
(a) A registration statement on Form S-3 (File No.
333-103915) in respect of the Designated Shares has been filed with the
Securities and Exchange Commission (the "COMMISSION"); such
registration statement and any post-effective amendment thereto, each
in the form (excluding exhibits to such registration statement, but
including all documents incorporated by reference in the prospectus
contained in the registration statement) heretofore delivered or to be
delivered to the Representatives, have been declared effective by the
Commission in such form; other than a registration statement increasing
the size of the offering (a "RULE 462(b) REGISTRATION STATEMENT"),
filed pursuant to Rule 462(b) under the Securities Act of 1933, as
amended (the "ACT"), which became effective upon filing, 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 (other than prospectuses
filed pursuant to Rule 424(b) of the rules and regulations of the
Commission under the Act, each in the form heretofore delivered to the
Representatives); and no stop order suspending the effectiveness of
such registration statement or the Rule 462(b) Registration Statement
has been issued and no proceeding for that purpose has been initiated
or
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threatened by the Commission; any preliminary prospectus included in
such registration statement or filed with the Commission pursuant to
Rule 424(b) of the rules and regulations of the Commission under the
Act is hereinafter called a "PRELIMINARY PROSPECTUS"; the various parts
of such registration statement and the Rule 462(b) Registration
Statement, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in such
registration statements, at the time such parts of the registration
statements became effective, each as amended at the time such parts of
the registration statements became effective, are hereinafter
collectively called the "REGISTRATION STATEMENT"; the final prospectus
relating to the Designated Shares, in the form in which it is filed
with the Commission pursuant to Rule 424(b) under the Act in accordance
with Section 5(a) hereof, including any documents incorporated by
reference therein as of the date of such filing, 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
report of the Company filed pursuant to Sections 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;
(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 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
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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 Company by an Underwriter of Designated Shares through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Shares;
(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 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, the date of the
applicable Pricing Agreement and any applicable Time of Delivery (as
detailed below) 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 Company by an Underwriter of Designated
Shares through the Representatives expressly for use in the Prospectus
as amended or supplemented relating to such Shares;
(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 Company 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 the exercise of
options and stock appreciation rights, upon earn outs of performance
shares, upon conversions of convertible securities and upon exercises
of stock purchase contracts, in each case which were outstanding on the
date of the latest balance sheet included or incorporated by reference
in the Prospectus) or any material increase in the consolidated
long-term debt of the Company and its subsidiaries or any material
adverse change, or any development involving a prospective material
adverse change, in or affecting the business affairs, management,
financial position, and stockholders' equity or results of operations
of the Company and its subsidiaries taken as a whole, otherwise than as
set forth or contemplated in the Prospectus;
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(e) The Company and each subsidiary of the Company which
meets the definition of a significant subsidiary as defined in
Regulation S-X (collectively referred to herein as the "SIGNIFICANT
SUBSIDIARIES" and individually as a "SIGNIFICANT SUBSIDIARY") has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, with
full corporate power and authority to own its properties and conduct
its business; to the Company's knowledge, all of the issued shares of
capital stock of each Significant Subsidiary are owned, directly or
indirectly through wholly-owned subsidiaries, by the Company, free and
clear of all material liens, encumbrances, equities or claims;
(f) The Company's authorized share capital is as set
forth in the Prospectus, and all of the issued shares of capital stock
of the Company have been duly and validly authorized and issued and are
fully paid and non-assessable;
(g) The Designated Shares have been duly and validly
authorized, and, when the Designated Shares are issued and delivered
pursuant to the Pricing Agreement with respect to such Designated
Shares against payment therefor, such Designated Shares will be duly
and validly issued and fully paid and non-assessable; and the
Designated Shares will conform to the description thereof contained in
the Prospectus as amended or supplemented with respect to such
Designated Shares;
(h) The issue and sale of the Designated Shares and the
compliance by the Company with all the provisions of the Pricing
Agreement with respect to the Designated Shares and the consummation of
the transactions therein contemplated have not conflicted with or
resulted in a breach or violation of any of the terms or provisions of,
or constituted a default under, and 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 Company is
a party or by which the Company is bound or to which any of the
property or assets of the Company is subject, except for such breaches,
conflicts, violations or defaults which would not have, individually or
in the aggregate with such other breaches, conflicts, violations and
defaults, a material adverse effect on the financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, considered as a whole, and which will not affect the
validity, performance or consummation of the transactions contemplated
by the Pricing Agreement with respect to the Designated Shares, and
have not resulted and will not result in any violation of the
provisions of the Certificate of Incorporation or By-laws of the
Company or any statute, rule or regulation, or any order or decree of
any court or
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regulatory authority or other governmental agency or body having
jurisdiction over the Company or any of its properties; and no consent,
approval, authorization, license, order, registration or qualification
of or with any such court, regulatory authority or other governmental
agency or body is required for the issue and sale of the Designated
Shares or the consummation by the Company of the transactions
contemplated by the Pricing Agreement with respect to the Designated
Shares, except those which have been, or will have been prior to the
Time of Delivery, obtained under the Act and the Exchange Act and such
consents, approvals, authorizations, registrations or qualifications as
may be required under state or foreign securities or state insurance
securities laws in connection with the purchase and distribution of the
Designated Shares by the Underwriters, and except for such consents,
approvals, authorizations, licenses, orders, registrations or
qualifications which the failure to make, obtain or comply with would
not have, individually or in the aggregate with such other failures, a
material adverse effect on the financial position, stockholders' equity
or results of operations of the Company and its subsidiaries,
considered as a whole, and which will not affect the validity,
performance or consummation of the transactions contemplated by the
Pricing Agreement with respect to the Designated Shares;
(i) Except as described in the Prospectus, there is no
action, suit or proceeding pending, nor to the knowledge of the
Company, 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
Company and its subsidiaries considered as a whole or which is required
to be disclosed in the Registration Statement;
(j) This Underwriting Agreement and the Pricing Agreement
with respect to the Designated Shares have been duly authorized,
executed and delivered by the Company;
(k) The financial statements included in the Registration
Statement and Prospectus present fairly the financial position of the
Company and its consolidated subsidiaries as of the dates shown and
their results of operations and cash flows for the periods shown, and,
except as otherwise disclosed in the Prospectus as amended or
supplemented, such financial statements have been prepared in
conformity with generally accepted accounting principles in the United
States applied on a consistent basis; any schedules included in the
Registration Statement present fairly the information required to be
stated therein; and
(l) There are no contracts or other documents of a
character required to be filed as an exhibit to the Registration
Statement or required
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to be described in the Registration Statement or the Prospectus which
are not filed or described as required.
3. Upon the execution of the Pricing Agreement applicable to the
Designated Shares and authorization by the Representatives of the release of the
Firm Shares, the several Underwriters propose to offer the Firm Shares for sale
upon the terms and conditions set forth in the Prospectus as amended or
supplemented.
The Company may specify in the Pricing Agreement applicable to any
Designated Shares that the Company thereby grants to the Underwriters the right
(an "OVERALLOTMENT OPTION") to purchase at their election up to a certain number
of Optional Shares, on the terms set forth in such Pricing Agreement, for the
sole purpose of covering sales of Shares in excess of the number of Firm Shares.
Any such election to purchase Optional Shares may be exercised by written notice
from the Representatives to the Company, given within a period specified in the
Pricing Agreement, setting forth the aggregate number of Optional Shares to be
purchased and the date on which such Optional Shares are to be delivered, as
determined by the Representatives but in no event earlier than the First Time of
Delivery (as defined in Section 4 hereof) or, unless the Representatives and the
Company 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 Shares to be added to the number of Firm Shares
to be purchased by each Underwriter as set forth in Schedule I to the Pricing
Agreement applicable to such Designated Shares shall be, in each case, the
number of Optional Shares which the Company has been advised by the
Representatives have been allocated to such Underwriter; provided that, if the
Company has not been so advised, the number of Optional Shares to be so added
shall be, in each case, that proportion of Optional Shares which the number of
Firm Shares to be purchased by such Underwriter under such Pricing Agreement
bears to the aggregate number of Firm Shares (rounded as the Representatives may
determine to the nearest 100 shares). The total number of Designated Shares to
be purchased by all the Underwriters pursuant to such Pricing Agreement shall be
the aggregate number of Firm Shares set forth in Schedule I to such Pricing
Agreement plus the aggregate number of Optional Shares which the Underwriters
elect to purchase.
4. Certificates for the Designated Shares to be purchased by each
Underwriter pursuant to the Pricing Agreement relating thereto, in the form
specified in such Pricing Agreement (including, if so specified, in
uncertificated form), 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 Company, shall be delivered by or on behalf of the Company
to the
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Representatives for the account of each such Underwriter, against payment by
such Underwriter or on its behalf of the purchase price therefor by wire
transfer of Federal (same-day) funds to the account specified by the Company to
the Representatives at least forty-eight hours in advance as specified in such
Pricing Agreement, (i) with respect to the Firm Shares, 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 Company may agree upon in
writing, such time and date being herein called the "FIRST TIME OF DELIVERY",
and (ii) with respect to the Optional Shares, if any, in the manner and at the
time and date specified by the Representatives in the written notice given by
the Representatives of the Underwriters' election to purchase such Optional
Shares, or at such other time and date as the Representatives and the Company
may agree upon in writing, such time and date, if not the First Time of
Delivery, herein called the "SECOND TIME OF DELIVERY". Each such time and date
for delivery is herein called a "TIME OF DELIVERY". For purposes of this
Agreement, "NEW YORK BUSINESS DAY" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in New York
are generally authorized or obligated by law or executive order to close.
5. The Company agrees with each of the Underwriters of the
Designated Shares:
(a) To prepare the Prospectus as amended or supplemented
in relation to the applicable Designated Shares 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 Shares, 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 Designated Shares and prior to
the Time of Delivery for such Designated Shares which shall be
disapproved by the Representatives for such Designated Shares 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 Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of a
prospectus is required in connection with the offering or sale of such
Designated Shares, 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
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issuance by the Commission of any stop order or of any order preventing
or suspending the use of any prospectus relating to the Designated
Shares, of the suspension of the qualification of such Designated
Shares 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
Designated Shares or suspending any such qualification, to promptly use
its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Designated
Shares for offering and sale under the insurance and 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 Designated Shares, provided that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process
in any jurisdiction; and provided further that the Company shall not be
required to qualify the Designated Shares in any jurisdiction if such
qualification would result in any obligation on the part of the Company
to make filings with any governmental entity in such jurisdiction after
the completion of the offering;
(c) Prior to 12:00 p.m., New York City time, on the
business day next succeeding the date of the Pricing Agreement
applicable to the Designated Shares and from time to time, 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
Designated Shares 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 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 or the
Exchange Act, to notify the Representatives and upon their request to
file such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as the
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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) To make generally available to its securityholders as
soon as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as defined in
Rule 158(c) under the Act), an earnings statement of the Company and
its subsidiaries (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations of the Commission
thereunder (including, at the option of the Company, Rule 158);
(e) Without the prior written consent of each of the
Representatives on behalf of the Underwriters, it will not, during the
period beginning from the date of the Pricing Agreement for the
Designated Shares and continuing to and including the date 90 days
after the date of the Prospectus Supplement (the "LOCK-UP PERIOD"), (i)
offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend or otherwise transfer or dispose of,
directly or indirectly, any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock or
(ii) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of
ownership of Common Stock, whether any such transaction described in
clause (i) or (ii) above is to be settled by delivery of Common Stock
or such other securities, in cash or otherwise. The foregoing sentence
shall not apply to (a) the sale of any Designated Shares to the
Underwriters hereunder, (b) transactions relating to the Common Stock
or other securities acquired in open market transactions after the
completion of the public offering by the several Underwriters of the
Designated Shares, (c) any shares of capital stock issued by the
Company upon the exercise of an option, warrant or right or the
conversion or exercise of a security outstanding on the date hereof;
(d) any capital stock issued or options to purchase shares of Common
Stock granted pursuant to employment benefit plans of the Company or
other employee or non-employee director compensation arrangements or
agreements in existence as of the date of the Prospectus; (e) any
capital stock or any securities convertible into or exercisable or
exchangeable for capital stock of the Company as consideration for any
acquisition by the Company, provided that in any such transaction not
registered under the Act in which the recipients would receive such
capital stock or securities during the Lock-up Period, the recipients
of such capital stock or securities agree in writing not to sell or
otherwise transfer such capital stock or securities during the Lock-up
Period; or (f) the Equity Units, including any shares of Common Stock
to be issued in connection with the Equity Xxxxx,
00
to be sold by the Company to the several underwriters (the "EQUITY
UNITS UNDERWRITERS") named in Schedule I to the Pricing Agreement
relating to the Equity Units, dated May 19, 2003, between the Company
and Xxxxxxx, Xxxxx & Co., Xxxxxx Xxxxxxx & Co. Incorporated and UBS
Warburg LLC, acting as representatives of the Equity Units
Underwriters; and
(f) If the Company elects to rely upon Rule 462(b), the
Company shall file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) by 10:00 p.m., Washington,
D.C. time, on the date of this Agreement, and the Company shall either
(a) by the time of filing pay to the Commission the filing fee for the
Rule 462(b) Registration Statement or (b) at the time of filing submit
with the 462(b) Registration Statement the certification required under
Rule 111(b) under the Act.
6. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Designated Shares 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, any Pricing Agreement, any Blue Sky
Memorandum, closing documents (including compilations thereof) and any other
documents in connection with the offering, purchase, sale and delivery of the
Designated Shares; (iii) all expenses in connection with the qualification of
the Designated Shares 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 survey(s); (iv) the cost of preparing certificates for the
Designated Shares; (v) the cost and charges of any transfer agent or registrar
or dividend disbursing agent; and (vi) all other costs and expenses incident to
the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, and Sections 8 and 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 Designated Shares by them,
and any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Shares
under the Pricing Agreement applicable to such Designated Shares shall be
subject, in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in
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the Pricing Agreement relating to such Designated Shares are, at and as of the
Time of Delivery for such Designated Shares, true and correct, the condition
that the Company shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation
to the applicable Designated Shares shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act
and in accordance with Section 5(a) hereof; the Rule 462(b)
Registration Statement shall have become effective by 10:00 p.m.,
Washington, D.C. time, on the date of this Agreement; 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;
(b) Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters,
shall have furnished to the Representatives such opinion or opinions,
dated each Time of Delivery for such Designated Shares, with respect to
the Pricing Agreement applicable to the Designated Shares, the validity
of the Designated Shares being delivered at such Time of Delivery, the
Registration Statement, the Prospectus and such 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) Debevoise & Xxxxxxxx, counsel for the Company, shall
have furnished to the Company (with a statement authorizing you to rely
thereon) their written opinion dated each Time of Delivery for such
Designated Shares, in form and substance satisfactory to you, to the
effect that the Designated Shares being delivered at the Time of
Delivery have been duly and validly authorized and issued and are fully
paid and non-assessable;
(d) Xxxx X. Xxxxx, Esq. Executive Vice President and
General Counsel to the Company, shall have furnished to you his written
opinion, dated the Time of Delivery for such Designated Shares, in form
and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and
is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation, with power
and authority (corporate or other) to own its properties and
conduct its business as described in the Prospectus as amended
or supplemented;
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(ii) The Company's share capital is as set forth
in the Prospectus as amended or supplemented and all of the
issued shares of capital stock of the Company (including the
Designated Shares being delivered at such Time of Delivery)
have been duly and validly authorized and issued and are fully
paid and non-assessable; and the Designated Shares conform to
the description thereof in the Prospectus as amended or
supplemented;
(iii) Except as described in the Prospectus, there
is no action, suit or proceeding pending, nor to such
counsel's best 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 Company
and its subsidiaries, considered as a whole, or which is
required to be disclosed in the Registration Statement;
(iv) The Underwriting Agreement and the Pricing
Agreement with respect to the Designated Shares have been duly
authorized, executed and delivered by the Company;
(v) The issue and sale of the Designated Shares
and the compliance by the Company with the Pricing Agreement
with respect to the Designated Shares 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 known to such counsel to which the
Company is a party or by which the Company is bound or to
which any of the property or assets of the Company is subject,
nor will such actions result in any violation of the
provisions of the Amended and Restated Certificate of
Incorporation or Amended By-Laws of the Company or any statute
or any order, rule or regulation known to such counsel of any
court or governmental agency or body having jurisdiction over
the Company or any of its properties;
(vi) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue or sale
of the Designated Shares or the consummation by the Company of
the transactions contemplated by the Pricing Agreement, except
such as have been obtained under the Act and the Exchange Act,
and any such consent, approval, authorization, order,
registration or qualification as may be required under state
securities or Blue
13
Sky laws in connection with the purchase and distribution of
the Designated Shares by the Underwriters;
(vii) 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 document;
(viii) The Designated Shares have been duly
registered under the Exchange Act;
(ix) The Registration Statement and the
Prospectus as amended or supplemented and any further
amendments and supplements thereto made by the Company on or
prior to the date of the Pricing Agreement relating to the
Designated Shares (other than the financial statements and
related schedules and other financial data therein, as to
which such counsel need express no opinion), comply as to form
in all material respects with the requirements of the Act and
the rules and regulations of the Commission thereunder; and
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
14
Statement or any further amendment thereto on or prior to the
date of the Pricing Agreement relating to the Designated
Shares (other than the financial statements and related
schedules and other financial data therein, as to which such
counsel need express no opinion) contained an untrue statement
of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading or that, as of its date, the
Prospectus as amended or supplemented or any further amendment
or supplement thereto made by the Company on or prior to the
date of the Pricing Agreement relating to the Designated
Shares (other than the financial statements and related
schedules and other financial data therein, as to which such
counsel need express no opinion) contained an untrue statement
of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under 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 Company on or prior to the date of the Pricing
Agreement relating to the Designated Shares (other than the
financial statements and related schedules and other financial
data therein, as to which such counsel need express no
opinion) contains an untrue statement of a material fact or
omits to state a material fact necessary in order to make the
statements therein, in the 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);
In rendering such opinion, such counsel may state that he
expresses no opinion as to the laws of any jurisdiction outside the
United States and in respect of matters of fact such counsel may rely
upon certificates of officers of the Company and its subsidiaries;
provided that such counsel shall state he believes that both you and he
are justified in relying upon such opinions and certificates and copies
of such opinions and certificates are made available to you;
15
(e) On the date of the Pricing Agreement for the
Designated Shares at a time prior to the execution of the Pricing
Agreement with respect to such Designated Shares and at each Time of
Delivery for such Designated Shares, Deloitte and Touche LLP, the
independent accountants of the Company, shall have furnished to the
Representatives a letter, dated the date of the Pricing Agreement and a
letter dated such Time of Delivery, respectively, as to such matters
ordinarily included in accountants' "comfort letters" to underwriters
as the Representatives may reasonably request and in form and substance
satisfactory to the Representatives;
(f) (i) 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 Company and its subsidiaries, considered as a whole,
from the dates as of which information is given in the Registration
Statement and the Prospectus as amended or supplemented on or prior to
the date of the Pricing Agreement relating to the Designated Shares;
and (ii) except as contemplated in the Prospectus, since the respective
dates as of which information is given in the Prospectus as amended or
supplemented on or prior to the date of the Pricing Agreement relating
to the Designated Shares there shall not have been any change in the
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest balance sheet included
or incorporated by reference in the Prospectus) or long-term debt of
the Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting the
business affairs, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries considered
as a whole, otherwise than as set forth or contemplated in the
Prospectus as amended on or prior to the date of the Pricing Agreement
relating to the Designated Shares, the effect of which, in any such
case described in clause (i) or (ii), is in the reasonable 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 Shares on the terms and in the manner contemplated in
the Prospectus as first amended or supplemented relating to the
Designated Shares;
(g) On or after the date of the Pricing Agreement
relating to the Designated Shares (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term
is defined by the Commission
16
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 Company's debt securities;
(h) On or after the date of the Pricing Agreement
relating to the Designated Shares 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 (the "EXCHANGE");
(ii) a material suspension or limitation in trading in the Company's
securities on the Exchange; (iii) a general moratorium on commercial
banking activities declared by either Federal or New York State
authorities or a material disruption in commercial banking or
securities settlement or clearance services in the United States; or
(iv) a material adverse change in the financial markets, the outbreak
or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war or
other calamity or crisis, if the effect of any such event specified in
this clause (iv) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Shares on the terms and in the manner
contemplated in the Prospectus as amended or supplemented relating to
the Designated Shares;
(i) The Shares being delivered at each Time of Delivery
shall have been duly listed, subject to notice of issuance, on the
Exchange; and
(j) The Company shall have furnished or caused to be
furnished to the Representatives at each Time of Delivery for the
Designated Shares a certificate or certificates of officers of the
Company satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company herein at and as of such
Time of Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (f) of
this Section and as to such other matters as the Representatives may
reasonably request.
8. (a) The Company will indemnify and hold harmless each
Underwriter, its partners, directors and officers and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the Act, 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 the Registration Statement, the Prospectus, or any
amendments or supplement thereto, or any related preliminary prospectus or
preliminary prospectus supplement, or arise out of or are based upon the
omission or alleged
17
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 losses,
claims, damages, liabilities or action as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives, if any, specifically for use therein, it being understood and
agreed that the only such information furnished by any Underwriter consists of
the information described as such in Schedule II.
(b) Each Underwriter of Designated Shares will severally
and not jointly indemnify and hold harmless the Company, its directors
and officers and each person, if any, who controls the Company within
the meaning of Section 15 of the Act, against any losses, claims,
damages or liabilities to which the Company may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Prospectus or any
amendment or supplement thereto, or any related preliminary prospectus
or preliminary prospectus supplement, 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 reliance upon and in
conformity with written information furnished to the Company by such
Underwriter through the Representatives, if any, specifically for use
therein, and will reimburse any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are
incurred, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as
such in Schedule II.
(c) Promptly after receipt by an indemnified party under
this section 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 subsection (a) or (b) above,
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
18
subsection (a) or (b) above. In the case of parties indemnified
pursuant to Section 8(a) above, counsel to the indemnified parties
shall be selected by the Representatives. An indemnifying party may
participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to
the indemnified party. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to
any local counsel) separate from their own counsel for all indemnified
parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under
this Section 8 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party
from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this Section
is unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand
and the Underwriters on the other from the offering of the Designated
Shares or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportions as is appropriate to
reflect not only the relative benefits referred to in clause (i) above
but also the relative fault of the Company on the one hand and the
Underwriters on the other in connection with the statements of
omissions which resulted in such losses, claims, damages or liabilities
as well as any relevant equitable considerations. The relative benefits
received by the Company on one hand and the Underwriters on the other
hand shall be deemed to be in the same proportions as the total net
proceeds from the offering (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions
received by the 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
19
material fact relates to information supplied by the Company 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 Company and the Underwriters
agree that it would not be just and equitable if contribution pursuant
to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred
to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the Designated Shares 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 Shares in this subsection (d) to contribute are several
in proportion to their respective underwriting obligations and not
joint.
(e) The obligations of the Company under this Section
shall be in addition to any liability which the Company may otherwise
have and shall extend, upon the same terms and conditions, to each
officer and director of the Underwriters and to each person, if any,
who controls any Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section 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 director
and officer of the Company and to each person, if any, who controls the
Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Designated Shares which it has agreed to purchase under the Pricing
Agreement relating to such Designated Shares, the Representatives may in their
discretion arrange for themselves or another party or other parties to purchase
such Designated Shares 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 Designated Shares, as the case may be, then the Company shall
20
be entitled to a further period of thirty-six hours within which to procure
another party or other parties reasonably satisfactory to the Representatives to
purchase such Designated Shares on such terms. In the event that, within the
respective prescribed period, the Representatives notify the Company that they
have so arranged for the purchase of such Designated Shares, or the Company
notifies the Representatives that it has so arranged for the purchase of such
Designated Shares, the Representatives or the Company shall have the right to
postpone a Time of Delivery for such Designated Shares 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 Company agrees
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 the Pricing 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
Shares.
(b) If, after giving effect to any arrangements for the
purchase of the Designated Shares of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate number of such Designated Shares
which remains unpurchased does not exceed one-eleventh of the aggregate
number of the Designated Shares to be purchased at the respective Time
of Delivery, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the number of Designated Shares
which such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Shares and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
number of Designated Shares which such Underwriter agreed to purchase
under such Pricing Agreement) of the Designated Shares 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 Designated Shares of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate number of Designated Shares which
remains unpurchased exceeds one-eleventh of the aggregate number of the
Designated Shares as referred to in subsection (b) above, or if the
Company shall not exercise the right described in subsection (b) above
to require non-defaulting Underwriters to purchase Designated Shares of
a defaulting Underwriter or Underwriters, then the Pricing Agreement
relating to such Designated Shares shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the Company,
except for the expenses to be
21
borne by the Company and the Underwriters as provided in Section 6
hereof and the indemnity and contribution agreements in Section 8
hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as
set forth or incorporated by reference in the Pricing Agreement with respect to
the Designated Shares or made by or on behalf of them, respectively, pursuant to
such Pricing 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 Company
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Shares.
11. If any Pricing Agreement shall be terminated due to the
failure of Xxxxx Xxxx & Xxxxxxxx to deliver its opinion to the Representatives
pursuant to Section 7(b) or pursuant to Section 9 hereof, the Company shall not
then be under any liability to any Underwriter with respect to the Designated
Shares set forth in such Pricing Agreement except as provided in Sections 6 and
8 hereof; but, if for any other reason Designated Shares are not delivered by or
on behalf of the Company as provided herein (other than in respect of a breach
of the Pricing Agreement by any Underwriter of Designated Shares covered by such
Pricing Agreement), the Company 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 Shares, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Shares
except as provided in Sections 6 and 8 hereof.
12. In all dealings under the Pricing Agreement applicable to the
Designated Shares, the Representatives of the Underwriters of the Designated
Securities shall act on behalf of each of such Underwriters, and the parties
thereto shall be entitled to act and rely upon any statement, request, notice or
agreement on behalf of any such Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in such 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 with respect to the Designated Shares; and if to the Company
shall be delivered or sent by mail, telex or facsimile transmission to the
address of the Company set forth in the Registration Statement, Attention:
General Counsel;
22
provided, however, that any notice to an Underwriter pursuant to Section 8(c)
hereof shall be delivered or sent by mail, telex or facsimile transmission to
such Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Company by the Representatives upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement with respect to the
Designated Shares shall be binding upon, and inure solely to the benefit of, the
Underwriters and the Company and, to the extent provided in Sections 8 and 10
hereof, the officers and directors of the Company and each person who controls
the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of such Pricing Agreement. No purchaser of any
of the Shares from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As
used herein, "BUSINESS DAY" shall mean any day other than a Saturday or Sunday
or a day on which banks in the City of New York are authorized or required to
close.
15. These Underwriting Agreement General Terms and Conditions and
each Pricing Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
16. The Agreement and each Pricing Agreement may be executed by
any one or more of the parties 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.
23
If the foregoing is in accordance with your understanding, please sign
and return to us six counterparts hereof.
Very truly yours,
THE HARTFORD FINANCIAL
SERVICES GROUP, INC.
By: /s/ Xxxx X. Xxxxxxxx
__________________________
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President
and Treasurer
Accepted as of the date hereof by the Representatives of the Underwriters listed
in Schedule I to the Pricing Agreement:
XXXXXXX, SACHS & CO.
/s/ Xxxxxxx, Xxxxx & Co.
________________________________________
(Xxxxxxx, Sachs & Co.)
CITIGROUP GLOBAL MARKETS INC.
By: /s/ Xxxxxxx X. Xxxxx
_____________________________________
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED
By: /s/ Xxxxx Xxxxxxxx
_____________________________________
Name: Xxxxx Xxxxxxxx
Title: Vice President
ANNEX I
PRICING AGREEMENT
Xxxxxxx, Sachs & Co.
Citigroup Global Markets Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
May 19, 2003
Ladies and Gentlemen:
The Hartford Financial Services Group, Inc., a Delaware corporation
(the "COMPANY"), proposes, subject to the terms and conditions stated herein and
in the Underwriting Agreement General Terms and Conditions, dated May 19, 2003
attached hereto, to issue and sell to the Underwriters named in Schedule I
hereto (the "UNDERWRITERS") the Shares specified in Schedule II hereto (the
"DESIGNATED SHARES", consisting of Firm Shares and any Optional Shares the
Underwriters may elect to purchase). Each of the provisions of the Underwriting
Agreement General Terms and Conditions 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. Each reference to the
Representatives herein and in the provisions of the Underwriting Agreement
General Terms and Conditions so incorporated by reference shall be deemed to
refer to you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement General Terms and Conditions are used herein as therein defined. The
Representatives designated to act on behalf of each of the Underwriters of the
Designated Shares pursuant to Section 12 of the Underwriting Agreement General
Terms and Conditions and the addresses 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 Shares, in the form
heretofore delivered to you is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement General Terms and Conditions incorporated herein by
reference, the Company agrees to issue and sell to each of the Underwriters, and
each of the Underwriters agrees to purchase from the Company, at the time and
place and at the purchase price to such Underwriter set forth in Schedule II
hereto,
the number of Firm Shares set forth opposite the name of such Underwriter in
Schedule I hereto and, in the event and to the extent that the Underwriters
shall exercise the election to purchase Optional Shares, as provided below, the
Company agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company at
the purchase price to the Underwriters set forth in Schedule II hereto such
number of Optional Shares (as to which such election shall have been exercised)
as determined pursuant to Section 3 of the Underwriting Agreement General Terms
and Conditions, attached hereto.
The Company hereby grants to each of the Underwriters the right to
purchase at their election up to the number of Optional Shares 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 Shares. Any such election to purchase Optional Shares may
be exercised by written notice from the Representatives to the Company given
within a period of 30 calendar days after the date of this Pricing Agreement,
setting forth the aggregate number of Optional Shares to be purchased and the
date on which such Optional Shares are to be delivered, as determined by the
Representatives, but in no event earlier than the First Time of Delivery or,
unless the Representatives and the Company 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 six counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement General Terms and
Conditions incorporated herein by reference, shall constitute a binding
agreement between each of the Underwriters, on the one hand, and the Company, on
the other. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is or will be pursuant to the authority set forth in a
form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
Very truly yours,
THE HARTFORD FINANCIAL
SERVICES GROUP, INC.
By: /s/ Xxxx X. Xxxxxxxx
________________________________
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President
and Treasurer
Accepted as of the date hereof by the Representatives of the Underwriters listed
in Schedule I to the Pricing Agreement:
XXXXXXX, SACHS & CO.
/s/ Xxxxxxx, Xxxxx & Co.
________________________________________
(Xxxxxxx, Sachs & Co.)
CITIGROUP GLOBAL MARKETS INC.
By: /s/ Xxxxxxx X. Xxxxx
____________________________________
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED
By: /s/ Xxxxx Xxxxxxxx
____________________________________
Name: Xxxxx Xxxxxxxx
Title: Vice President
SCHEDULE I
MAXIMUM NUMBER OF
NUMBER OF OPTIONAL
FIRM SHARES SHARES WHICH
UNDERWRITER TO BE PURCHASED MAY BE PURCHASED
----------- --------------- ----------------
Xxxxxxx, Sachs & Co.................................. 6,044,000 906,601
Citigroup Global Markets Inc......................... 2,659,360 398,905
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated... 2,659,360 398,905
Xxxxxx Xxxxxxx & Co. Incorporated.................... 2,659,360 398,905
UBS Warburg LLC...................................... 2,659,360 398,905
Banc of America Securities LLC....................... 942,864 141,429
Deutsche Bank Securities Inc......................... 942,864 141,429
X.X. Xxxxxxx & Sons, Inc............................. 942,864 141,429
X.X. Xxxxxx Securities Inc........................... 942,864 141,429
Xxxxxx X. Xxxxx & Co., L.P........................... 942,864 141,429
Wachovia Securities, Inc......................... 942,864 141,429
Xxxxx Fargo Securities, LLC.......................... 942,864 141,429
ABN AMRO Rothschild LLC.............................. 55,907 8,386
BB&T Capital Markets, a division of Xxxxx &
Xxxxxxxxxxxx, Inc.................................... 55,907 8,386
MAXIMUM NUMBER OF
NUMBER OF OPTIONAL
FIRM SHARES SHARES WHICH
UNDERWRITER TO BE PURCHASED MAY BE PURCHASED
----------- --------------- ----------------
Xxxxxx X. Xxxxx & Co. Incorporated................... 55,907 8,386
Bear, Xxxxxxx & Co. Inc.............................. 55,907 8,386
BNY Capital Markets, Inc............................. 55,907 8,386
Xxxxxxx & Partners Securities, LLC............... 55,907 8,386
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc..................... 55,907 8,386
Xxxxxx Xxxxxxxxxx Xxxxx LLC.......................... 55,907 8,386
Xxxxx, Xxxxxxxx & Xxxxx, Inc......................... 55,907 8,386
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated................. 55,907 8,386
Mellon Financial Markets, LLC........................ 55,907 8,386
Xxxxxxxxx Xxxxxx, LLC................................ 55,907 8,386
Xxxxxxx Xxxxx & Associates, Inc...................... 55,907 8,386
SunTrust Capital Markets, Inc........................ 55,907 8,386
U.S. Bancorp Xxxxx Xxxxxxx Inc....................... 55,907 8,386
The Xxxxxxxx Capital Group, L.P...................... 55,907 8,386
---------- ---------
Total................................................ 24,176,000 3,626,400
========== =========
SCHEDULE II
TITLE OF DESIGNATED SHARES:
Common Stock (par value $.01 per share)
NUMBER OF DESIGNATED SHARES:
NUMBER OF FIRM SHARES: 24,176,000
MAXIMUM NUMBER OF OPTIONAL SHARES: 3,626,400
FORM OF DESIGNATED AND OPTIONAL SHARES:
Uncertificated shares in book-entry form through the facilities of The
Depository Trust Company
PURCHASE PRICE BY UNDERWRITER:
$44.04 per Share
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal (same day) funds
TIME OF DELIVERY:
10:00 a.m. (New York City time) on May 23, 2003, or at such other time
and date as the Representatives and the Company may agree upon in writing.
CLOSING LOCATION:
Debevoise & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at
such other place as the Representatives and the Company may agree upon in
writing.
NAMES AND ADDRESSES OF REPRESENTATIVES:
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
INFORMATION PROVIDED BY THE UNDERWRITERS:
The Underwriters have furnished to the Company for use in the
Prospectus Supplement:
(a) The names of the Underwriters in the table of Underwriters
under the caption "Underwriting" in the Prospectus Supplement;
(b) The first and second paragraphs of text following the first
table under the caption "Underwriting" in the Prospectus
Supplement, concerning the terms of the offering;
(c) The second, third and fourth sentences of the first paragraph
of text following the second table under the caption
"Underwriting" in the Prospectus Supplement, concerning market
making by the Underwriters; and
(c) The third, fourth and fifth paragraphs of text following the
second table under the caption "Underwriting" in the
Prospectus Supplement, concerning short sales and other
stabilizing transactions by the Underwriters.
