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EXHIBIT 1.1
HARTFORD LIFE, INC.
CLASS A COMMON STOCK
(PAR VALUE $0.01 PER SHARE)
UNDERWRITING AGREEMENT
(U.S. VERSION)
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, 1997
Xxxxxxx, Xxxxx & Co.,
Xxxx Xxxxxx Xxxxxxxx Inc.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated,
Xxxxxx Xxxxxxx & Co. Incorporated,
Xxxxx Xxxxxx Inc.,
As representatives of the Several
Underwriters named in Schedule I hereto
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
Hartford Life, Inc., a Delaware corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") an aggregate of
shares (the "Firm Shares") and, at the election of the Underwriters, up
to additional shares (the "Optional Shares") of Class A Common Stock,
par value $0.01 per share ("Stock"), of the Company (the Firm Shares and the
Optional Shares that the Underwriters elect to purchase pursuant to Section 2
hereof being collectively called the "Shares"). Hartford Life and Accident
Insurance Company, a Connecticut corporation ("HLAIC"), is a wholly owned
subsidiary of the Company, and the Company is a wholly owned subsidiary of
Hartford Accident and Indemnity Company, a Connecticut corporation ("HAIC"),
which in turn is an indirect wholly-owned subsidiary of ITT Hartford Group,
Inc., a Delaware corporation ("Group"). The transactions comprising the
incorporation of the Company and the contribution to the Company by HAIC of all
of the issued and outstanding stock of HLAIC, the issuance by the Company to
HAIC of 100 shares of the capital stock, par value $.01 per share, of the
Company and the conversion and reclassification of such 100 shares into shares
of Class B Common Stock, par value $.01 per share ("Class B Common Stock"), are
collectively referred to herein as the "Reorganization". The transactions
comprising the drawdown of $1,084 million on February 20, 1997 pursuant to a
line of credit between the Company and Citibank, N.A., Mellon Bank, N.A., Bank
of America Illinois, and Xxxxxx Xxxxxxx Guaranty Trust Company of New York, the
execution of a promissory note for the benefit of HAIC in the amount of $100
million, and the declaration and payment of a dividend of $1,184 million to HAIC
on February 20, 1997, including $893 million of such dividend constituting a
repayment of indebtedness allocated to certain
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life insurance subsidiaries of the Company in favor of Group, are hereinafter
collectively referred to herein as the "Distribution". The proposed debt
offering that is scheduled to occur promptly following the offering of the
Shares is hereinafter referred to as the "Debt Offering". The various agreements
between the Company and its subsidiaries, on the one hand, and Group and its
subsidiaries (other than the Company and its subsidiaries), on the other hand,
are collectively hereinafter referred to as the "Intercompany Agreements".
It is understood and agreed to by all parties hereto that the Company and
Group are concurrently entering into an agreement (the "International
Underwriting Agreement") providing for the sale by the Company of up to a total
of shares of Stock (the "International Shares"), including the
overallotment option thereunder, through arrangements with certain underwriters
outside the United States (the "International Underwriters"), for whom Xxxxxxx
Sachs International, Xxxx Xxxxxx International Limited, Xxxxxxx Xxxxx
International, Xxxxxx Xxxxxxx & Co. International Limited, and Xxxxx Xxxxxx Inc.
are acting as lead managers. Anything herein or therein to the contrary
notwithstanding, the respective closings under this Agreement and the
International Agreement are hereby expressly made conditional on one another.
The Underwriters hereunder and the International Underwriters are simultaneously
entering into an Agreement between U.S. and International Underwriting
Syndicates (the "Agreement between Syndicates") which provides, among other
things, for the transfer of shares of Stock between the two syndicates. Two
forms of prospectus are to be used in connection with the offering and sale of
shares of Stock contemplated by the foregoing, one relating to the Shares
hereunder and the other relating to the International Shares. The latter form of
prospectus will be identical to the former except for the front cover page, the
additional inside front cover page, the back cover page and the text under the
caption "Underwriting" and amendments thereto as mentioned below. Except as used
in Sections 2, 3, 4, 9 and 11 herein, and except as the context may otherwise
require, references hereinafter to the Shares shall include all the shares of
Stock which may be sold pursuant to either this Agreement or the International
Underwriting Agreement, and references herein to any prospectus whether in
preliminary or final form, and whether as amended or supplemented, shall include
both the U.S. and the international versions thereof.
1. (a) The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(i) A registration statement on Form S-1 (File No. 333-21459) (the
"Initial Registration Statement") in respect of the Firm Shares and the
Optional Shares has been filed with the Securities and Exchange Commission
(the "Commission"); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered to
you, and, excluding exhibits thereto, to you for each of the other
Underwriters, have been declared effective by the Commission in such form;
no other document (other than (i) the pre-effective amendments thereto and
(ii) a registration statement, if any, 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 or
will become effective upon filing) with respect to the Initial
Registration Statement has heretofore been filed with the Commission; and
no stop order suspending the effectiveness of any post-effective amendment
thereto or a Rule 462(b) Registration Statement, if any, has been issued
and no proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in the Initial
Registration Statement or filed with the Commission pursuant to Rule
424(a) of the rules and regulations of the Commission under the Act, is
hereinafter called a "Preliminary Prospectus"; the various parts of the
Initial Registration Statement, and a Rule 462(b) Registration Statement,
if any, including all exhibits thereto and including the information
contained in the form of final prospectus filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with
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Section 5(a) hereof and deemed by virtue of Rule 430A under the Act to be
part of the Initial Registration Statement at the time it was declared
effective or such part of a Rule 462(b) Registration Statement, if any,
became or hereafter becomes effective, each as amended at the time such
part of the registration statement became effective or such part of a Rule
462(b) Registration Statement, if any, became or hereafter becomes
effective, are hereinafter collectively called the "Registration
Statement"; and such final prospectus, in the form first filed pursuant to
Rule 424(b) under the Act, is hereinafter called the "Prospectus");
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder, and did 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, in the light of the
circumstances under which they were made, 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 through
Xxxxxxx, Xxxxx & Co. expressly for use therein;
(iii) The Registration Statement conforms, and the Prospectus 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 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 through Xxxxxxx, Sachs & Co. expressly for use
therein;
(iv) 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 or any material increase in the
consolidated long-term debt of the Company and its subsidiaries or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, management,
financial position, and stockholder's equity or results of operations (in
each case considered on either a statutory or U.S. generally accepted
accounting principles ("GAAP") basis) of the Company and its subsidiaries
taken as a whole, otherwise than as set forth or contemplated in the
Prospectus;
(v) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware,
with full corporate power and authority to own its properties and conduct
its business as described in the Prospectus, and has been duly qualified
as a foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or
leases properties or conducts any business so as to require such
qualification except where the failure to be so qualified in any such
jurisdiction
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would not have, individually or in the aggregate with such other failures,
a material adverse effect on the financial position, stockholder's equity
or results of operations of the Company and its subsidiaries, considered
as a whole; and each of HLAIC, Hartford Life Insurance Company, a
Connecticut corporation ("HLIC"), ITT Hartford Life and Annuity Insurance
Company, a Connecticut corporation ("ITTL"), American Maturity Life
Insurance Company, a Connecticut corporation, ITT Hartford Life
International, Limited, a Bermuda corporation, and ITT Hartford
International Life Reassurance Corp., a Connecticut corporation
(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
its jurisdiction of incorporation with full corporate power and authority
to own its properties and conduct its business as described in the
Prospectus, and has been duly qualified for the transaction of business
and is in good standing as a foreign corporation under the laws of each
other jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification, except where the failure to
be so qualified in any such jurisdiction would not have, individually or
in the aggregate with such other failures, a material adverse effect on
the financial position, stockholder's equity or results of operations of
the Company and its subsidiaries, considered as a whole;
(vi) The Company has made all required filings under applicable
insurance holding company statutes, and has received approvals of
acquisition of control and/or affiliate transactions in each jurisdiction
in which such filings or approvals are required, except where the failure
to have made such filings or receive such approvals in any such
jurisdiction would not have, individually or in the aggregate with other
such failures, a material adverse effect on the financial position,
stockholder's equity or results of operations of the Company and its
subsidiaries, considered as a whole; each Significant Subsidiary that is
required to be organized and licensed as an insurance company in its
jurisdiction of incorporation is duly organized and licensed as an
insurance company in its respective jurisdiction of incorporation, and
each Significant Subsidiary is duly licensed or authorized as an insurer
in each other jurisdiction in which such licensing or authorization is
required, except where the failure to be so licensed or authorized in any
such jurisdiction would not have, individually or in the aggregate with
other such failures, a material adverse effect on the financial position,
stockholder's equity or results of operations of the Company and its
subsidiaries, considered as a whole; the Company and each of its
Significant Subsidiaries have all other necessary authorizations,
approvals, orders, consents, certificates, permits, registrations or
qualifications of and from all insurance regulatory authorities to conduct
their respective businesses as described in the Prospectus, except where
the failure to have such authorizations, approvals, orders, consents,
licenses, certificates, permits, registrations or qualifications would not
have, individually or in the aggregate with other such failures, a
material adverse effect on the financial position, stockholder's equity or
results of operations of the Company and its subsidiaries, considered as a
whole;
(vii) The Company and each of its Significant Subsidiaries that is
an insurance company is in compliance with the requirements of the
insurance laws and regulations of its jurisdiction of incorporation and
the insurance laws and regulations of other jurisdictions which are
applicable to the Company and each such Significant Subsidiary, and has
filed all notices, reports, documents or other information required to be
filed thereunder, except where the failure to so comply or file would not,
individually or in the aggregate with other such failures, have a material
adverse effect on the financial position, stockholder's equity or results
of operations of the Company and its subsidiaries, considered as a whole;
(viii) Without limiting the foregoing, the Company and its
Significant Subsidiaries, as applicable, have filed all notices, reports,
documents or other information required to be filed by
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them pursuant to, and have obtained all authorizations, approvals, orders,
consents, licenses, certificates, permits, registrations or qualifications
required to be obtained under, and have otherwise complied with all
requirements of, all applicable insurance laws and regulations in
connection with the consummation of the Reorganization, the Distribution
and the Debt Offering, the entering into and performance of the
Intercompany Agreements by the Company and its subsidiaries, the issuance
and sale of Shares by the Company and the purchase and distribution of the
Shares by the Underwriters and the International Underwriters, except for
such authorizations, approvals, orders, consents, licenses, certificates,
permits, 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,
stockholder's 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 Reorganization, the
Distribution, the Debt Offering, the Intercompany Agreements or the
transactions contemplated by this Agreement and the International
Underwriting Agreement and except for filings required to be made after
the Time of Delivery;
(ix) The Company has an authorized capitalization 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 and conform to the description thereof contained
in the Prospectus; and all of the issued shares of capital stock of each
Significant Subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and (except for
directors' qualifying shares) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims;
(x) The Shares to be issued and sold by the Company to the
Underwriters hereunder and under the International Underwriting Agreement
have been duly and validly authorized and, when issued and delivered
against payment therefor as provided herein and in the International
Underwriting Agreement, will be duly and validly issued and fully paid and
non-assessable and will conform to the description of the Stock contained
in the Prospectus;
(xi) The issue and sale of the Shares by the Company hereunder and
under the International Underwriting Agreement, the consummation of the
Reorganization and the Distribution, the entering into and performance of
the Intercompany Agreements by the Company and its subsidiaries, the
compliance by the Company with all of the provisions of this Agreement and
the International Underwriting Agreement and the consummation of the
transactions herein and therein contemplated have in each case been duly
authorized by all necessary corporate and shareholder action on the part
of the Company; the issue and sale of the Shares by the Company, the
consummation of the Reorganization, the Distribution and the Debt
Offering, the entering into and performance of the Intercompany Agreements
by the Company and its subsidiaries, the compliance by the Company with
all the provisions of this Agreement and the International Underwriting
Agreement and the consummation of the transactions herein and 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 or any of its Significant Subsidiaries is a party or
by which the Company or any of its Significant Subsidiaries is bound or to
which any of the property or assets of the Company or any of its
Significant Subsidiaries 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, stockholder's equity or
results of
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operations of the Company and its subsidiaries, considered as a whole, and
which will not affect the validity, performance or consummation of the
Reorganization, the Distribution, the Debt Offering, the Intercompany
Agreements or the transactions contemplated by this Agreement and the
International Underwriting Agreement, 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 of its Significant
Subsidiaries or any statute, rule or regulation, or, to the Company's
knowledge, any order or decree of any court or regulatory authority or
other governmental agency or body having jurisdiction over the Company or
any of its Significant Subsidiaries or any of their 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 consummation of the
Reorganization, the Distribution, the Debt Offering, the entering into or
performance of the Intercompany Agreements by the Company and its
subsidiaries, the issue and sale of the Shares or the consummation by the
Company of the transactions contemplated by this Agreement and the
International Underwriting Agreement, except those which have been
obtained in accordance with Section 1(a)(viii), the registration under the
Act of the Shares, the registration under the Act of the debt securities
to be sold in the Debt Offering, 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 Shares by the Underwriters and the
International 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, stockholder's 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
Reorganization, the Distribution, the Debt Offering, the Intercompany
Agreements or the transactions contemplated by this Agreement and the
International Underwriting Agreement;
(xii) 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;
(xiii) The Company is not and, after giving effect to the offering
and sale of the Shares, will not be an "investment company", as such terms
is defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(xiv) This Agreement and the International Underwriting Agreement
have been duly authorized executed and delivered by the Company; and
(xv) There are no contracts or other documents of a character
required to be filed as an exhibit to the Registration Statement or
required to be described in the Registration Statement or the Prospectus
which are not filed or described as required.
(b) Group represents and warrants to, and agrees with, each of the
Underwriters that:
(i) Group has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware; HAIC has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of
Connecticut;
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and all of the issued shares of capital stock of HAIC have been duly
and validly issued and are fully paid and non-assessable;
(ii) This Agreement and the International Underwriting
Agreement have each been duly authorized, executed and delivered by
Group; and
(iii) The issue and sale of the Shares by the Company, the
consummation of the Reorganization and the Distribution, the entering
into and performance of the Intercompany Agreements, the compliance
by the Company and Group with all the provisions of this Agreement
and the International Underwriting Agreement which are applicable to
them and the consummation of the transactions herein and therein
contemplated have in each case been duly authorized by all necessary
corporate and shareholder action on the part of each of Group and its
subsidiaries (other than the Company and its subsidiaries) (the
"Group Subsidiaries"); the issue and sale of the Shares by the
Company, the consummation of the Reorganization, the Distribution and
the Debt Offering, the entering into and performance of the
Intercompany Agreements, the compliance by the Company and Group with
all the provisions of this Agreement and the International
Underwriting Agreement which are applicable to them and the
consummation of the transactions herein and 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 statute,
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which Group or any of the Group Subsidiaries is a
party or by which Group or any of the Group Subsidiaries is bound or
to which any of the property or assets of Group or any of the Group
Subsidiaries is subject, except for such conflicts, breaches,
violations or defaults as would not have, individually or in the
aggregate with such other conflicts, breaches, violations and
defaults, a material adverse effect on the Company and its
subsidiaries, considered as a whole, and which will not affect the
validity, performance or consummation of the Reorganization, the
Contribution, the Distribution, the Intercompany Agreements or the
transactions contemplated by this Agreement and the International
Underwriting Agreement; nor will such actions result in any violation
which affects the validity, performance or consummation of the
transactions contemplated by this Agreement, the International
Underwriting Agreement, the Reorganization, the Distribution or the
Intercompany Agreements, of the provisions of the Certificate of
Incorporation or By-Laws of Group or any of the Group Subsidiaries or
any statute, rule or regulation or, to Group's knowledge, any order
or decree of any court or insurance regulatory authority or other
governmental agency or body having jurisdiction over Group or any of
the Group Subsidiaries or any of their respective properties; Group
and the Group Subsidiaries, as applicable, have filed all notices,
reports, documents or other information required to be filed by them
pursuant to, and have obtained all authorizations, approvals, orders,
consents, licenses, certificates, permits, registrations or
qualifications required to be obtained by them under, and have
otherwise complied with all requirements of all applicable laws and
regulations (including applicable insurance laws and regulations) in
connection with the Reorganization, the Distribution, the
Intercompany Agreements, and the transactions contemplated by this
Agreement and the International Underwriting Agreement; and no
filing, authorization, approval, order, consent, license,
certificate, permit, registration or qualification of or with any
court or insurance regulatory authority or other governmental agency
or body having jurisdiction over Group or any of the Group
Subsidiaries or any of their properties or any securities exchange is
required for the sale of the Shares under this Agreement and under
the International Underwriting Agreement or the consummation of the
Reorganization, the Distribution, the Debt Offering, the Intercompany
Agreements, except the
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registration under the Act of the Shares, the registration under the
Act of the debt securities to be sold in the Debt Offering 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 Shares by the Underwriters and except for such
authorizations, approvals, orders, consents, licenses, certificates,
permits, 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, stockholder's 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
Reorganization, the Distribution, the Debt Offering, the Intercompany
Agreements or the transactions contemplated by this Agreement and the
International Underwriting Agreement.
2. Subject to the terms and conditions herein set forth, (a) 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
a purchase price per share of $ , the number of Firm
Shares 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 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
per share set forth in clause (a) of this Section 2, that portion of the number
of Optional Shares as to which such election shall have been exercised (to be
adjusted by you so as to eliminate fractional shares) determined by multiplying
such number of Optional Shares by a fraction, the numerator of which is the
maximum number of Optional Shares which such Underwriter is entitled to purchase
as set forth opposite the name of such Underwriter in Schedule I hereto and the
denominator of which is the maximum number of Optional Shares that all of the
Underwriters are entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase
at their election up to Optional Shares, at the purchase price per
share set forth in the paragraph above, for the sole purpose of covering
overallotments in the sale of the Firm Shares. Any such election to purchase
Optional Shares may be exercised only by written notice from you to the Company,
given within a period of 30 calendar days after the date of this 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 you but
in no event earlier than the First Time of Delivery (as defined in Section 4
hereof) or, unless you and the Company otherwise agree in writing, earlier than
two or later than ten business days after the date of such notice.
3. Upon the authorization by you 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.
It is understood that Firm Shares will initially be
reserved by the several Underwriters for offer and sale upon the terms and
conditions set forth in the Prospectus to employees (other than international
employees) and directors of the Company, Group and their respective subsidiaries
who have heretofore delivered to you offers or indications of interest to
purchase Firm Shares in form satisfactory to you, and that any allocation of
such Firm Shares among such persons will be made in accordance with timely
directions received by you from the Company; provided that under no
circumstances will you or any Underwriter be liable to the Company for any
action taken or omitted in good faith in connection with such offering to such
persons. It is further understood that any of such Firm Shares which are not
purchased by such persons will be offered by the Underwriters to the public upon
the terms and conditions set forth in the Prospectus.
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4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Xxxxxxx, Xxxxx & Co. may request upon at least forty-eight hours' prior
notice to the Company, shall be delivered by or on behalf of the Company to
Xxxxxxx, Sachs & Co., through the facilities of the Depository Trust Company
("DTC"), for the account of such Underwriter, against payment by or on behalf of
such Underwriter of the purchase price therefor by wire transfer of same day
funds, payable to the order of the Company. The Company will cause the
certificates representing the Shares to be made available for checking and
packaging at least twenty-four hours prior to the Time of Delivery (as defined
below) with respect thereto at the office of DTC or its designated custodian
(the "Designated Office"). The time and date of such delivery and payment shall
be, with respect to the Firm Shares, 9:30 a.m., New York City time, on
, 1997 or such other time and date as Xxxxxxx, Xxxxx & Co. and the
Company may agree upon in writing, and, with respect to the Optional Shares,
9:30 a.m., New York time, on the date specified by Xxxxxxx, Sachs & Co. in the
written notice given by Xxxxxxx, Xxxxx & Co. of the Underwriters' election to
purchase such Optional Shares, or such other time and date as Xxxxxxx, Sachs &
Co. and the Company may agree upon in writing. Such time and date for delivery
of the Firm Shares is herein called the "First Time of Delivery", such time and
date for delivery of the Optional Shares, if not the First Time of Delivery, is
herein called the "Second Time of Delivery", and each such time and date for
delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on behalf
of the parties hereto pursuant to Section 7 hereof, including the cross receipts
for the Firm Shares and the Optional Shares and any additional documents
requested by the Underwriters pursuant to Section 7(l) hereof, will be delivered
at the offices of Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (the "Closing Location"), and the Shares will be delivered at the
Designated Office, all at such Time of Delivery. A meeting will be held at the
Closing Location at 2:30 p.m., New York City time, on the New York Business Day
next preceding such Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the purposes of this Section 4, "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. (a) The Company agrees with each of the Underwriters:
(i) To prepare the Prospectus in a form approved by you 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 this Agreement, or, if
applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Act; to make no further amendment or any supplement to the
Registration Statement or Prospectus which shall be disapproved by
you promptly after reasonable notice thereof; to advise you, 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
and to furnish you with copies thereof; to advise you, promptly after
it receives notice thereof, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or prospectus, of the suspension of the
qualification of the 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 stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or prospectus or
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suspending any such qualification, promptly to use its best efforts
to obtain the withdrawal of such order;
(ii) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under
the insurance securities laws of such jurisdictions as you may
request and to comply with such laws so as to permit the continuance
of sales and dealings therein in such jurisdictions for as long as
may be necessary to complete the distribution of the 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;
(iii) On the New York Business Day next succeeding the date of
this Agreement and from time to time, to furnish the Underwriters
with copies of the Prospectus in such quantities as you may from time
to time reasonably request, and, if the delivery of a prospectus is
required at any time prior to the expiration of nine months after the
time of issue of the Prospectus in connection with the offering or
sale of the 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 in order to comply with the Act, to notify
you and upon your request to prepare and furnish without charge to
each Underwriter and to any dealer in securities as many copies as
you 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, and in case any Underwriter is
required to deliver a prospectus in connection with sales of any of
the Shares at any time nine months or more after the time of issue of
the Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many
copies as you may request of an amended or supplemented Prospectus
complying with Section 10(a)(3) of the Act;
(iv) 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 thereunder (including, at
the option of the Company, Rule 158);
(v) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the
Prospectus, not to offer, sell, contract to sell or otherwise dispose
of, except pursuant to this Agreement and the International
Underwriting Agreement, directly or indirectly, or file a
registration statement under the Act with respect to, any Stock or
any securities of the Company that are substantially similar to the
Stock, including but not limited to the Company's Class B Common
Stock, any other securities that are convertible into or exchangeable
for, or that represent the right to receive, Stock or any such
substantially similar securities (other than pursuant to employee
stock option or equivalent plans existing on the date of this
Agreement), without your prior written consent;
(vi) During a period of three years from the effective date of
the Registration Statement, to furnish to you copies of all reports
or other communications (financial or other) furnished to
stockholders, and to deliver to you (i) as soon as they are
available, copies of any reports
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and financial statements furnished to or filed with the Commission or
any national securities exchange on which any class of securities of
the Company is listed; and (ii) such additional information
concerning the business and financial condition of the Company as you
may from time to time reasonably request (such financial statements
to be on a consolidated basis to the extent the accounts of the
Company and its subsidiaries are consolidated in reports furnished to
its stockholders generally or to the Commission);
(vii) To use its best efforts to list, subject to notice of
issuance, the Shares on the New York Stock Exchange (the "Exchange");
(viii) To file with the Commission such reports on Form SR as
may be required by Rule 463 under the Act; and
(ix) 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 at the time of
filing either pay to the Commission the filing fee for the Rule
462(b) Registration Statement or give irrevocable instructions for
the payment of such fee pursuant to Rule 111(b) under the Act.
(b) Group agrees with each of the Underwriters, during the period
beginning from the date hereof and continuing to and including the date 180 days
after the date of the Prospectus, not to, and not to permit any of the Group
Subsidiaries to, (x) offer, sell, contract to sell or otherwise dispose of any
shares of Class B Common Stock, Stock or any other equity securities, or
securities convertible into or exchangeable for, or rights or warrants to
acquire, or any other securities substantially similar to, such securities, of
the Company or (y) file any registration statement under the Act with respect to
any such securities, in each case without your prior written consent.
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 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, this Agreement, the International Underwriting Agreement, the
Agreement between Syndicates, the Selling Agreement, closing documents
(including compilations thereof) and any other documents in connection with the
offering, purchase, sale and delivery of the Shares;] (iii) all expenses in
connection with the qualification of the Shares for offering and sale under
state securities laws and insurance securities laws as provided in Section 5(b)
hereof, including the fees and disbursements of counsel for the Underwriters in
connection with such qualification; (iv) all fees and expenses in connection
with listing the Shares on the New York Stock Exchange; (v) the fees and
disbursements of counsel for the Underwriters in connection with the directed
share offering contemplated by the second paragraph of Section 3 of this
Agreement; (vi) the filing fees incident to [, and the fees and disbursements of
counsel for the Underwriters in connection with,] securing any required review
by the National Association of Securities Dealers, Inc. of the terms of the sale
of the Shares; (vii) the cost of preparing stock certificates; (viii) the cost
and charges of any transfer agent or registrar; and (ix) 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
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of their own costs and expenses, including the fees of their counsel, stock
transfer taxes on resale of any of the Shares by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder, as to the Shares to be
delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company and Group herein are, at and as of such Time of Delivery, true and
correct, the condition that the Company and Group shall have performed all of
their obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) under the Act within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 5(a) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated
or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to
your reasonable satisfaction. If the Company has elected to rely upon Rule
462(b) under the Act, 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;
(b) Xxxxxxxx & Xxxxxxxx, counsel for the Underwriters, shall have
furnished to you such opinion or opinions, dated such Time of Delivery,
with respect to the incorporation of the Company, the Agreement, the
validity of the Shares being delivered at such Time of Delivery, the
Registration Statement, the Prospectus and such other related matters as
you 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) Cravath, Swaine & Xxxxx, counsel for the Company and Group, shall
have furnished to you their written opinion (a draft of such opinion is
attached as Annex II(a) hereto), dated such Time of Delivery, 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 state of
Delaware, with full corporate power and authority to own its
properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company (including the Shares being delivered at such Time of
Delivery) have been duly and validly authorized and issued and are
fully paid and nonassessable; and the Shares conform in all material
respects to the description of the Stock contained in the Prospectus;
(iii) This Agreement and the International Underwriting Agreement
have been duly authorized, executed and delivered by the Company;
(iv) The issue and sale of the Shares being delivered at such Time
of Delivery by the Company, the consummation of the Reorganization by
the Company and its subsidiaries and the Distribution, the entering
into and performance of the Intercompany Agreements by the Company
and its subsidiaries, the compliance by the Company with all of the
provisions of this Agreement and the International Underwriting
Agreement and the consummation of the transactions herein and therein
contemplated have in each case been duly authorized by all necessary
corporate and shareholder action on the part of the Company; the
issue and sale
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of the Shares being delivered at such Time of Delivery by the
Company, the consummation of the Reorganization, the Distribution,
the Debt Offering, the entering into and performance of the
Intercompany Agreements by the Company and its subsidiaries, the
compliance by the Company with all of the provisions of this
Agreement and the International Underwriting Agreement and the
consummation of the transactions herein and 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 known to such counsel to which the Company or any of its
Significant Subsidiaries is a party or by which the Company or any of
its Significant Subsidiaries is bound or to which any of the property
or assets of the Company or any of its Significant Subsidiaries 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, stockholder's 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 Reorganization, the Distribution, the Debt
Offering, the Intercompany Agreement or the transactions contemplated
by this Agreement or the International Underwriting Agreement, 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 or any order, rule or regulation of the United
States or the State of New York or the General Corporation Law of the
State of Delaware or, to the knowledge of such counsel, any order or
decree of any court or other governmental agency or body having
jurisdiction over the Company or any of its Significant Subsidiaries
or any of their properties, except that such counsel may (i) exclude
all insurance laws and (ii) assume that all such agreements are
governed by, and would be interpreted in accordance with, the laws of
the State of New York;
(v) The statements set forth in the Prospectus under the caption
"Description of Capital Stock", insofar as they purport to constitute
a summary of the terms of the Stock, and under the captions "Certain
Provisions of the Certificate of Incorporation and By-Laws of the
Company -- Delaware Statute"; and "Certain United States Federal Tax
Consequences To Non-United States Holders of Class A Common Stock",
insofar as they purport to describe the provisions of the laws and
documents referred to therein, are accurate, complete and fair; and
(vi) This Agreement and the International Underwriting Agreement
have each been duly authorized, executed and delivered by Group.
In rendering such opinion, such counsel may state that they express
no opinion as to any laws other than the laws of the State of New
York, the General Corporation Laws of the State of Delaware and the
Federal Laws of the United States in respect of matters of fact upon
certificates of officers of the Company and its subsidiaries or Group
and the Group Subsidiaries, as applicable; provided that such counsel
shall state that they believe that both you and they are justified in
relying upon such certificates and copies of such certificates are
made available to you.
Such counsel shall also have furnished to you its written statement,
dated such Time of Delivery, in form and substance satisfactory to
you, confirming that, on the basis of information gained in the
course of its representation of the Company and Group, the
Registration Statement, at the time it became effective, and the
Prospectus, as of such Time of Delivery (except the financial
statements and other information of a statistical, accounting
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or financial nature included therein, as to which such counsel need
express no view), appeared on their face to be appropriately
responsive in all material respects to the requirements of the Act
and the applicable rules and regulations thereunder; and that such
counsel's work in connection with such matter did not disclose any
information that gave such counsel reason to believe that the
Registration Statement, at the time it became effective, contained an
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus, as of its
date or at such Time of Delivery, included or includes an untrue
statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading (in each
case except for the financial statements and other information of an
accounting or financial nature included therein, as to which such
counsel need express no view).
(d) Xxxxx X. Xxxxxx, Esq., general counsel to the Company, shall have
furnished to you her written opinion (a draft of such opinion is attached
as Annex II(b) hereto), dated such Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, except where the failure to be so qualified in any
such jurisdiction would not have, individually or in the aggregate
with such other failures, a material adverse effect on the financial
position, stockholder's equity or results of operations of the
Company and its subsidiaries, considered as a whole (such counsel
being entitled to rely in respect of the opinion in this clause upon
opinions of local counsel and in respect of matters of fact upon
certificates of officers of the Company, provided that such counsel
shall state that they believe that both you and they are justified in
relying upon such opinions and certificates and copies of such
opinions and certificates are made available to you);
(ii) Each Significant Subsidiary of the Company that was
organized in the United States has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
its jurisdiction of incorporation with full corporate power and
authority to own its properties and conduct its business as described
in the Properties; and all of the issued shares of capital stock of
each Significant Subsidiary have been duly and validly authorized and
issued, are fully paid and non-assessable, and (except for directors'
qualifying shares) are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims (such
counsel being entitled to rely in respect of the opinion in this
clause upon opinions of local counsel and in respect to matters of
fact upon certificates of officers of the Company or its
subsidiaries, provided that such counsel shall state that they
believe that both you and they are justified in relying upon such
opinions and certificates);
(iii) The Company has made all required filings under
applicable insurance holding company statutes, and has received
approvals of acquisition of control and/or affiliate transactions in
each jurisdiction in which such filings or approvals are required,
except where the failure to have made such filings or to receive such
approvals in any such jurisdiction would not have, individually or in
the aggregate with such other failures, a material adverse effect on
the financial position, stockholder's equity or results of operations
of the Company and its subsidiaries, considered as a whole;
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(iv) Each Significant Subsidiary that is required to be
organized and licensed as an insurance company in its jurisdiction of
incorporation is duly organized and licensed as an insurance company
in its respective jurisdiction of incorporation, and each Significant
Subsidiary is duly licensed or authorized as an insurer in each other
jurisdiction in which such licensing or authorization is required,
except where the failure to be so licensed or authorized in any such
jurisdiction would not have, individually or in the aggregate with
other such failures, a material adverse effect on the financial
position, stockholder's equity or results of operations of the
Company and its subsidiaries, considered as a whole; the Company and
each of its Significant Subsidiaries have all other necessary
authorizations, approvals, orders, consents, certificates, permits,
registrations or qualifications of and from all insurance regulatory
authorities to conduct their respective businesses as described in
the Prospectus, except where the failure to have such authorizations,
approvals, orders, consents, licenses, certificates, permits,
registrations or qualifications would not, individually or in the
aggregate with other such failures, have a material adverse effect on
the financial position, stockholder's equity or results of operations
of the Company and its subsidiaries, considered as a whole;
(v) The Company and each of its Significant Subsidiaries is
in compliance with the requirements of the insurance laws and
regulations of its jurisdiction of incorporation and the insurance
laws and regulations of other jurisdictions which are applicable to
the Company and each such Significant Subsidiary, and has filed all
notices, reports, documents or other information required to be filed
thereunder, except where the failure to so comply or file would not
have, individually or in the aggregate with other such failures, a
material adverse effect on the financial position, stockholder's
equity or results of operations of the Company and its subsidiaries,
considered as a whole;
(vi) To the best of such counsel's knowledge, except as
described in the Prospectus, there is no action, suit or proceeding
pending, nor 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;
(vii) To the knowledge of such counsel, there are no contracts
or other documents of a character required to be filed as an exhibit
to the Registration Statement or required to be described in the
Registration Statement or the Prospectus which are not filed or
described as required;
(viii) The Company and its Significant Subsidiaries have filed
all notices, reports, documents or other information required to be
filed by them pursuant to, and have obtained all authorizations,
approvals, orders, consents, licenses, certificates, permits,
registrations or qualifications required to be obtained under, and
have otherwise complied with all requirements of, all applicable
insurance laws and regulations in connection with the consummation of
the Reorganization, the Distribution, the Debt Offering, the entering
into and performance of the Intercompany Agreements, and the issuance
and sale of Shares by the Company and the purchase and distribution
of the Shares by the Underwriters and the International Underwriters,
except for such authorizations, approvals, orders, consents,
licenses, certificates, permits, 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, stockholder's equity or
results of operations of the Company and its subsidiaries, considered
as a whole, and which will not affect the
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validity, performance or consummation of the Reorganization, the
Distribution, the Debt Offering, the Intercompany Agreements or the
transactions contemplated by this Agreement and the International
Underwriting Agreement. No further filing, authorization, approval,
order, consent, license, certificate, permit, registration or
qualification of or with any court or insurance regulatory authority
or other governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties is
required for the consummation of the Reorganization, the Distribution
or the Debt Offering, the entering into and performance of the
Intercompany Agreements, the sale of Shares under this Agreement and
the International Underwriting Agreement, or the consummation of the
transactions contemplated herein and therein, except that such
counsel shall not be required to opine with respect to any Federal or
State securities laws;
(ix) The Company is not an "investment company", as such term
is defined in the Investment Company Act;
(x) The issue and sale of the Shares being delivered at such
Time of Delivery by the Company, the consummation of the
Reorganization, the Distribution and the Debt Offering, the entering
into and performance of the Intercompany Agreements, the compliance
by the Company with all of the provisions of this Agreement and the
International Underwriting Agreement and the consummation of the
transactions herein and therein contemplated have not resulted and
will not result in any violation of the provisions of any insurance
statutes or any order, rule or regulation known to such counsel of
any court or insurance regulatory authority or other governmental
agency or body having jurisdiction over the insurance operations of
the Company or any of its Significant Subsidiaries or any of their
properties; and
In rendering such opinion, such counsel may state that she expresses
no opinion as to the laws of any jurisdiction outside the United
States and in respect of matters of fact upon certificates of
officers of the Company and its subsidiaries; provided that such
counsel shall state that she believes that both you and she are
justified in relying upon such opinions and certificates and copies
of such opinions and certificates are made available to you.
Such counsel shall also have furnished to you her written statement,
dated such Time of Delivery, in form and substance satisfactory to
you, confirming that, on the basis of information gained in the
course of her representation of the Company, the Registration
Statement, at the time it became effective, and the Prospectus as of
such Time of Delivery (except the financial statements and other
information of a statistical, accounting or financial nature included
therein, as to which such counsel need express no view), appeared on
their face to be appropriately responsive in all material respects to
the requirements of the Act and the applicable rules and regulations
thereunder; and that such counsel's work in connection with such
matter did not disclose any information that gave such counsel reason
to believe that the Registration Statement, at the time it became
effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or that the
Prospectus, as of its date or at such Time of Delivery, included or
includes an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made,
not misleading (in each case except for the financial statements and
other information of an accounting or financial nature included
therein, as to which such counsel need express no view).
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(e) Xxxxxxx X. Xxxxxx, Esq., general counsel to Group, shall have
furnished to you his written opinion (a draft of such opinion is attached
as Annex II(c) hereto), dated such Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) HAIC has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of
Connecticut; and all of the issued shares of capital stock of HAIC
have been duly and validly issued and are fully paid and
non-assessable;
(ii) Group has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware;
(iii) Group and the Group Subsidiaries have filed all notices,
reports, documents or other information required to be filed by them
pursuant to, and have obtained all authorizations, approvals, orders,
consents, licenses, certificates, permits, registrations or
qualifications required to be obtained under, and have otherwise
complied with all requirements of, all applicable insurance laws and
regulations in connection with the consummation of the
Reorganization, the Distribution, the Debt Offering, the entering
into and performance of the Intercompany Agreements, and the issuance
and sale of Shares by the Company and the purchase and distribution
of the Shares by the Underwriters and the International Underwriters,
except for such authorizations, approvals, orders, consents,
licenses, certificates, permits, 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, stockholder's 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 Reorganization, the Distribution, the Debt
Offering, the Intercompany Agreements or the transactions
contemplated by this Agreement and the International Underwriting
Agreement. No further filing, authorization, approval, order,
consent, license, certificate, permit, registration or qualification
of or with any court or insurance regulatory authority or other
governmental agency or body having jurisdiction over Group or any of
the Group Subsidiaries or any of their properties is required for the
consummation of the Reorganization, the Distribution or the Debt
Offering, the entering into and performance of the Intercompany
Agreements, the sale of Shares under this Agreement and the
International Underwriting Agreement, or the consummation of the
transactions contemplated herein and therein, except that such
counsel shall not be required to opine with respect to any Federal or
State securities laws;
(iv) To the best of such counsel's knowledge, except as
described in the Prospectus, there is no action, suit or proceeding
pending, nor is there any action, suit or proceeding threatened, in
each case against Group or any of the Group Subsidiaries for which
the Company or any of its subsidiaries would be contractually
responsible, 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; and
(v) The issue and sale of the Shares by the Company, the
consummation of the Reorganization and the Distribution, the entering
into and performance of the Intercompany Agreements, the compliance
by the Company and Group with all the provisions of this Agreement
and the International Underwriting Agreement which are applicable to
them and the consummation of the transactions herein and therein
contemplated have in each case been duly authorized by all necessary
corporate and shareholder action on the part of each
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of Group and the Group Subsidiaries; the issue and sale of the Shares
by the Company, the consummation of the Reorganization, the
Distribution and the Debt Offering, the entering into and performance
of the Intercompany Agreements, the compliance by the Company and
Group with all the provisions of this Agreement and the International
Underwriting Agreement which are applicable to them and the
consummation of the transactions herein and 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 statute,
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument known to such counsel to which Group or any of the
Group Subsidiaries is a party or by which Group or any of the Group
Subsidiaries is bound or to which any of the property or assets of
Group or any of the Group Subsidiaries is subject, except for such
conflicts, breaches, violations or defaults as would not have,
individually or in the aggregate with such other conflicts, breaches,
violations and defaults, a material adverse effect on the Company and
its subsidiaries, considered as a whole, or which will not affect the
validity, performance or consummation of the Reorganization, the
Distribution, the Intercompany Agreements, or the transactions
contemplated by this Agreement and the International Underwriting
Agreement; nor will such actions result in any violation which
affects the validity, performance or consummation of the
Reorganization, the Distribution, the Debt Offering, the Intercompany
Agreements, or the transactions contemplated by this Agreement and
the International Underwriting Agreements of the provisions of the
Certificate of Incorporation or By-Laws of Group or any of the Group
Subsidiaries or, to the best of such counsel's knowledge, any
statute, rule or regulation or any order or decree applicable to
Group or any of the Group Subsidiaries.
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 upon certificates of
officers of Group and Group Subsidiaries; provided that such counsel
shall state that he believes that both you and he are justified in
relying upon such certificates and copies of such certificates are
made available to you.
(f) On the date of the Prospectus at a time prior to the execution of
this Agreement, at 9:30 a.m., New York City time, on the effective date of
any post-effective amendment to the Registration Statement filed
subsequent to the date of this Agreement and also at each Time of
Delivery, Xxxxxx Xxxxxxxx LLP shall have furnished to you a letter or
letters, dated the respective dates of delivery thereof, in form and
substance satisfactory to you, to the effect set forth in Annex I hereto.
The executed copy of the letter delivered prior to the execution of this
Agreement is attached as Annex 1(a) hereto and a draft of the form of
letter to be delivered on the effective date of any post-effective
amendment to the Registration Statement and as of each Time of Delivery is
attached as Annex 1(b) hereto;
(g)(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; and (ii) except as contemplated in the Prospectus, since the
respective dates as of which information is given in the Prospectus there
shall not have been any change in the capital stock 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, stockholder's equity or results of
operations
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(in each case considered on either a statutory or GAAP basis) of the
Company and its subsidiaries, taken as a whole, otherwise than as set
forth or contemplated in the Prospectus, 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
Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus;
(h) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded Hartford Fire Insurance Company's or the
Company's or any of its Significant Subsidiaries' debt securities or
financial strength or claims paying ability by any of Xxxxx'x Investor
Services, Inc., Standard & Poor's, A.M. Best Company, Inc. or Duff &
Xxxxxx Credit Rating Co. and (ii) no such organization shall have publicly
announced [(except for such announcements as are specifically set forth in
the Prospectus dated the date hereof)] that it has under surveillance or
review, with possible negative implications, its rating of any of Hartford
Fire Insurance Company's, the Company's or any of its Significant
Subsidiaries' debt securities or financial strength or claims paying
ability, the effect of which, in any case described in Clause (i) or (ii),
is in your reasonable judgment so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares being delivered at such Time of Delivery on the
terms and in the manner contemplated in the Prospectus;
(i) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in
securities generally on the Exchange; (ii) a suspension or material
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 (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 reasonable judgment of the
Representatives makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares being delivered at such Time
of Delivery on the terms and in the manner contemplated in the Prospectus;
(j) The Shares to be sold at such Time of Delivery shall have been
duly listed, subject to notice of issuance, on the Exchange;
(k) The Company shall have obtained and delivered to the Underwriters
executed copies of an agreement from certain officers and directors of the
Company and Group, listed on Annex III hereto in the form of Annex IV
hereto; and
(l) Each of Group and the Company shall have furnished or caused to
be furnished to you at such Time of Delivery certificates of officers of
Group and of the Company satisfactory to you as to the accuracy of the
representations and warranties of Group and the Company herein at and as
of such Time of Delivery, as to the performance by Group and 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 (g)
of this Section and as to such other matters as you may reasonably
request.
8. (a) The Company and Group, jointly and severally, will 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, the Registration Statement
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or the Prospectus, 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 the Company and Group 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 made in any Preliminary Prospectus, the Registration Statement or the
Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through Xxxxxxx, Sachs & Co. expressly for use therein and; provided, further,
that neither the Company nor Group shall be liable to any Underwriter under the
indemnity agreement in this subsection (a) with respect to any 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 Shares 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 (it being understood that if at the time of any such claim such
Underwriter shall certify that it has sent or given the Prospectus as then
amended or supplemented to any person making such claim at or prior to the
written confirmation of such sale, it shall be presumed that such Prospectus has
been so sent or given unless the Company or Group shall have sustained the
burden of proving, in a court of competent jurisdiction by a final and
nonappealable order, that the facts are otherwise), if (i) such delivery to such
person is required by Section 5 of the Act, (ii) the Company or Group 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 Company and
Group against any losses, claims, damages or liabilities to which the Company
and Group 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, the Registration
Statement or the Prospectus, 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, the Registration Statement or
the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through Xxxxxxx, Xxxxx & Co. expressly for use therein; and will reimburse the
Company and Group for any legal or other expenses reasonably incurred by the
Company or Group 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 (i)
shall not relieve it from any liability which it may have to any indemnified
party under such subsection unless and to the extent it did not otherwise learn
of such action and such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification
-20-
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obligation provided in paragraph (a) or (b) above. In case any such action shall
be brought against any indemnified party and it shall notify promptly 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. It is understood and agreed that the
indemnifying party shall, in connection with any one such action, suit or
proceeding or separate but substantially similar or related actions, suits or
proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the reasonable fees and expenses of only one
separate firm of attorneys (in addition to any local counsel) at any time for
all indemnified parties not having actual or potential differing interests among
themselves. 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 not include a statement as to or an admission
of fault, culpability or a failure to act, by or on behalf of any indemnified
party.
(d) If the indemnification provided for in this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect 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 Company on the one hand and the Underwriters on the other from the
offering of the Shares. 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 Company on the one hand and
the Underwriters 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 Company on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Shares purchased under this Agreement (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters with respect to the
Shares purchased under this Agreement, in each case as set forth in the table on
the cover page of the Prospectus. 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 Company or Group on the one hand or the
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, Group and the Underwriters agree that it would not be just and
equitable if contributions 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 into
account the equitable considerations referred to above in this subsection (d).
The amount paid or payable by an indemnified
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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 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 Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) Group's obligation to indemnify, reimburse and/or contribute to the
Underwriters as specified in subsections (a), (c) and (d) above shall arise only
in the circumstance where, and only to the extent that, the Company is unable to
satisfy its obligations to indemnify, reimburse and/or contribute to the
Underwriters ("Company Obligations") as specified above by virtue of the
Company's inability, after reasonable efforts to obtain other sources of funds,
to obtain funds satisfactory to satisfy Company Obligations in full from the
Company's subsidiaries by virtue of insurance regulatory restrictions (formal or
informal) preventing funds from being so obtained. The Company shall indemnify,
reimburse and/or contribute to Group for any losses, damages or liabilities
Group suffers to the Underwriters pursuant to the foregoing sentence.
Notwithstanding the foregoing, Group's obligation to indemnify, reimburse and/or
contribute to the Underwriters as specified in subsections (a), (c) and (d)
above with respect to statements or omissions made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any amendment or
supplement thereto in reliance upon and in conformity with written information
furnished to the Company by or on behalf of Group expressly for use therein
shall not be subject to the limitations of this subsection (e).
(f) The obligations of the Company and Group under this Section 8 shall be
in addition to any liability which the Company and Group 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 8 shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Company and Group
(including any person who, with his or her consent, is named in the Registration
Statement as about to become a director of the Company) and to each person, if
any, who controls the Company or Group within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Shares which it has agreed to purchase hereunder at a Time of Delivery, you may
in your discretion arrange for you or another party or other parties to purchase
such Shares on the terms contained herein. If within thirty-six hours after such
default by any Underwriter you do not arrange for the purchase of such Shares,
then the Company shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties reasonably satisfactory
to you to purchase such Shares on such terms. In the event that, within the
respective prescribed periods, you notify the Company that you have so arranged
for the purchase of such Shares, or the Company notifies you that it has so
arranged for the purchase of such Shares, you or the Company shall have the
right to postpone Time of Delivery 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, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments to the
Registration Statement or the Prospectus which in your opinion may thereby be
made necessary. The term "Underwriter" as used
-22-
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in this Agreement shall include any person substituted under this Section with
like effect as if such person had originally been a party to this Agreement with
respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased does not exceed one-eleventh of the aggregate number of all
the Shares to be purchased at such Time of Delivery, then the Company shall have
the right to require each non-defaulting Underwriter to purchase the number of
Shares which such Underwriter agreed to purchase hereunder at such Time of
Delivery and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Shares which such
Underwriter agreed to purchase hereunder) of the 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
Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased exceeds one-eleventh of the aggregate number of all the
Shares to be purchased at such Time of Delivery, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Shares of a defaulting Underwriter or Underwriters,
then this Agreement (or, with respect to the Second Time of Delivery, the
obligations of the Underwriters to purchase and of the Company to sell the
Optional Shares) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be 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, Group 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 Company
or Group, or any officer or director or controlling person of the Company or
Group, and shall survive delivery of and payment for the Shares.
11. If this Agreement shall be terminated solely pursuant to Section 7(b),
or Section 9 hereof, the Company shall not then be under any liability to any
Underwriter except as provided in Sections 6 and 8 hereof; but, if for any other
reason, Shares are not delivered by or on behalf of the Company as provided
herein (other than in respect of a breach of this Agreement by any Underwriter
or a violation of applicable law or regulation by any Underwriter), the Company
will reimburse the Underwriters through you for all out-of-pocket expenses
approved in writing by you, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of the Shares not so delivered, but the Company shall then be
under no further liability to any Underwriter in respect of the Shares not so
delivered except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
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 you jointly or by Xxxxxxx, Xxxxx & Co. on behalf of you as the
representatives.
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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 you as the representatives in care of Xxxxxxx, Sachs &
Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration
Department; 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; and if to Group shall be
delivered or sent by mail, telex or facsimile transmission to Xxxxxxxx Xxxxx,
Xxxxxxxx, XX 00000, Attention: Corporate Secretary; 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 you upon
request. Any such statements, requests, notices or agreements shall take effect
at the time of receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company, Group and, to the extent provided in Sections
8 and 10 hereof, the officers and directors of the Company and Group and each
person who controls the Company, Group 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. 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 this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding, please sign and
return to us 10 counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement among each of the Underwriters, the Company and
Group. It is understood that your acceptance of this letter on behalf
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of each of the Underwriters is pursuant to the authority set forth in a form of
Agreement among Underwriters (U.S. Version), the form of which shall be
submitted to the Company for examination upon request, but without warranty on
your part as to the authority of the signers thereof.
Very truly yours,
HARTFORD LIFE, INC.
By:__________________________________
Name:
Title:
ITT HARTFORD GROUP, INC.
By:__________________________________
Name:
Title:
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
Xxxx Xxxxxx Xxxxxxxx Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxx Xxxxxx Inc.
By:__________________________________
(Xxxxxxx, Xxxxx & Co.)
On behalf of each of the Underwriters
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SCHEDULE I
NUMBER OF OPTIONAL
TOTAL NUMBER OF SHARES TO BE
FIRM SHARES TO PURCHASED IF MAXIMUM
UNDERWRITER BE PURCHASED OPTION EXERCISED
----------- --------------- --------------------
Xxxxxxx, Sachs & Co. ....................................
Xxxx Xxxxxx Xxxxxxxx Inc.................................
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated.............................
Xxxxxx Xxxxxxx & Co. Incorporated........................
Xxxxx Xxxxxx Inc.........................................
Total....................................
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ANNEX I
Pursuant to Section 7(f) of the Underwriting Agreement, Xxxxxx Xxxxxxxx
LLP shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to the Company 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, financial
forecasts and/or pro forma financial information) audited by them and
included in the Prospectus or the Registration Statement comply as to form
in all material respects with the applicable accounting requirements of
the Act and the related published rules and regulations thereunder; and,
if applicable, they have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the unaudited consolidated interim financial statements, selected
financial data, pro forma financial information, financial forecasts
and/or condensed financial statements derived from audited financial
statements of the Company 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 as indicated in their reports thereon copies of which have been
furnished to the Representatives and on the basis of specified procedures
including inquiries of officials of the Company 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 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 related published rules and
regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company
for the three most recent fiscal years included in the Prospectus agrees
with the corresponding amounts (after restatements where applicable) in
the audited consolidated financial statements for such three fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and
on the basis of limited procedures specified in such letter nothing came
to their attention as a result of the foregoing procedures that caused
them to believe that this information does not conform in all material
respects with the disclosure requirements of Items 301, 302 and 402,
respectively, of Regulation S-K;
(vi) 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
28
statements and other information referred to below, a reading of the
latest available interim financial statements of the Company and its
subsidiaries, inspection of the minute books of the Company and its
subsidiaries since the date of the latest audited financial statements
included in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) the unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Act and
the related published rules and regulations, or (ii) any material
modifications should be made to the unaudited condensed consolidated
statements of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus for them to be in
conformity with generally accepted accounting principles;
(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 in the Prospectus;
(C) the unaudited financial statements which were not included
in the Prospectus but from which were derived any unaudited condensed
financial statements referred to in Clause (A) and any unaudited
income statement data and balance sheet items included in the
Prospectus and referred to in Clause (B) were not determined on a
basis substantially consistent with the basis for the audited
consolidated financial statements included in the Prospectus;
(D) any unaudited pro forma consolidated condensed financial
statements included 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, upon earn-outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest financial statements
included in the Prospectus) or any increase in the consolidated
long-term debt of the Company and its subsidiaries, or any decreases
in consolidated total assets or stockholders' equity or other items
specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with
amounts shown in the latest balance sheet included 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 in the Prospectus to the specified date referred
to in Clause (E) there were any decreases in consolidated total
revenues or income before taxes or the total or per share amounts of
I-2
29
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
decreases or increases which the Prospectus discloses have occurred
or may occur or which are described in such letter; and
(vii)In addition to the audits referred to in their report(s)
included in the Prospectus and the limited procedures, inspection of
minute books, inquiries and other procedures referred to in paragraphs
(iii) and (vi) above, they have carried out certain specified procedures,
not constituting an audit in accordance with generally accepted auditing
standards, with respect to certain amounts, percentages and financial
information specified by the Representatives, which are derived from the
general accounting records of the Company and its subsidiaries, which
appear in the Prospectus, or in Part II of, or in exhibits and schedules
to, the Registration Statement specified by the Representatives, and have
compared certain of such amounts, percentages and financial information
with the accounting records of the Company and its subsidiaries and have
found them to be in agreement.
I-3
30
ANNEX II(a)
Form of Opinion of Cravath, Swaine & Xxxxx
31
ANNEX II(b)
Form of Opinion of Xxxxx X. Xxxxxx, Esq.
32
ANNEX II(c)
Form of Opinion of Xxxxxxx X. Xxxxxx, Esq.
33
ANNEX III
List of Officers and Directors
Subject to Lock-Up
Group Directors and Officers
Company Directors and Officers
34
ANNEX IV
Form of Lock-Up Agreement
_______, 1997
Xxxxxxx, Sachs & Co.,
Xxxx Xxxxxx Xxxxxxxx, Inc.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated,
Xxxxxx Xxxxxxx & Co. Incorporated,
Xxxxx Xxxxxx Inc.,
as Representatives of the
several Underwriters named
in the Underwriting Agreement (U.S. Version)
c/o Goldman, Xxxxx & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Xxxxxxx Sachs International,
Xxxx Xxxxxx International Limited,
Xxxxxxx Xxxxx International,
Xxxxxx Xxxxxxx & Co. International Limited,
Xxxxx Xxxxxx Inc.,
as Representatives of the
several Underwriters named
in the Underwriting Agreement (International Version)
c/o Goldman Xxxxx International,
Peterborough Court,
000 Xxxxx Xxxxxx,
Xxxxxx XX0X 0XX Xxxxxxx.
Re: Proposed Public Offering of Common Stock
of Hartford Life, Inc.
Ladies and Gentleman:
This agreement relates to the proposed initial public offering of
shares (the "Shares") of the Class A Common Stock, par value $.01 per share (the
"Common Stock"), of Hartford Life, Inc., a corporation incorporated under the
laws of the State of Delaware (the "Company"), for which a Registration
Statement on Form S-1 has been filed with the Securities and Exchange
Commission.
In connection with such offering, the Company will enter into an
Underwriting Agreement (U.S. Version) (the "U.S. Underwriting Agreement"), with
the several Underwriters to be listed on Schedule I thereto (the "U.S.
Underwriters") for whom Xxxxxxx, Sachs & Co., Xxxx Xxxxxx Xxxxxxxx, Inc.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxx Xxxxxxx & Co.
Incorporated and Xxxxx
35
Barney Inc. are acting as representatives (the "U.S. Representatives"), and an
Underwriting Agreement (International Version) (the "International Underwriting
Agreement" and, together with the U.S. Underwriting Agreement, the "Underwriting
Agreements"), with the several Underwriters to be listed on Schedule I to the
International Underwriting Agreement (the "International Underwriters" and,
together with the U.S. Underwriters, the "Underwriters") for whom Xxxxxxx Xxxxx
International, Xxxx Xxxxxx International Limited, Xxxxxx Xxxxxxx & Co.
International Limited and Xxxxx Xxxxxx Inc. are acting as representatives (the
"International Representatives" and together with the U.S. Representatives, the
"Representatives" ). To facilitate the marketing of Shares to be sold in the
public offering and in consideration of the Underwriters entering into the
Underwriting Agreements, the undersigned hereby irrevocably confirms, covenants
and agrees for the benefit of the Company and the Underwriters as follows:
(i) The undersigned will not (and will not permit any other person
who holds of record any of the undersigned's shares of Common Stock to),
directly or indirectly, sell, offer to sell, contract to sell, grant any
option for the sale of or otherwise dispose of any shares of Common Stock
or any securities of the Company substantially similar to the Common Stock
or any security convertible or exchangeable into, or exercisable for,
Common Stock or securities that are substantially similar to Common Stock,
during the period beginning from the date of this agreement and continuing
to and including the date 180 days after the date of the Prospectus (as
defined in the Underwriting Agreement), without the prior written consent
of the Representatives.
(ii) The undersigned acknowledges (a) the sufficiency of the
consideration for this agreement and (b) that the decision, if any, of the
Underwriters to enter into the Underwriting Agreements will be made in
part in reliance upon the undersigned entering into, and abiding by the
terms of, this agreement.
(iii) The undersigned acknowledges and agrees that the covenants and
agreements set forth herein are in addition to and not in lieu of the
provisions of any agreements or instruments defining the rights of the
undersigned.
(iv) All consents, approvals, authorizations and orders necessary for
the execution and delivery by the undersigned of this Agreement have been
obtained; the undersigned has full right, power and authority to enter
into this Agreement; and this Agreement has been duly executed and
delivered by the undersigned and constitutes a valid and legally binding
obligation of the undersigned enforceable in accordance with its terms;
and
(v) The compliance by the undersigned with all of the provisions of
this Agreement will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, any
statute, indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the undersigned is a party or by which
the undersigned is bound or to which any of the property or assets of the
undersigned is subject, nor will such action result in any violation of
the provisions of the Certificate of Incorporation or By-laws of the
undersigned, if the undersigned is a corporation, the partnership
agreement of the undersigned, if the undersigned is a partnership, or any
other organizational documents of the undersigned, or any statute, rule or
regulation or, to the knowledge of the undersigned, any order or decree of
any court or governmental agency or body having jurisdiction over the
undersigned or the property of the undersigned.
This agreement shall be governed by and construed in accordance with
the laws of the State of New York.
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36
Very truly yours,
______________________________
Name:_________________________
Title:________________________
IV-3
