EXHIBIT 1.1
[FORM OF UNDERWRITING AGREEMENT]
THE ALLSTATE CORPORATION
DEBT SECURITIES, DEBT WARRANTS
AND PREFERRED STOCK
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UNDERWRITING AGREEMENT
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[Date]
[Underwriters]
c/o [ ]
Ladies and Gentlemen:
The Allstate Corporation, a Delaware corporation (the "Company"), proposes
to issue and sell to the several Underwriters named in Schedule II hereto (the
"Underwriters"), for whom you (the "Representatives") are acting as
representatives, [$______ principal amount of its ___% _____ Notes Due ____]
[______ warrants representing the right to purchase [title of such debt
securities purchasable through exercise of warrants] [_____shares of its Series
__ Preferred Stock] registered under the Registration Statement referred to in
Section 1(a) below (the "Securities"), to be issued pursuant to the provisions
of the Senior Indenture, Subordinated Indenture (together with the Senior
Indenture as applicable, the "Indenture"), Debt Warrant Agreement or Certificate
of Incorporation of the Company (including the applicable Certificate of
Designation), as applicable and in substantially the form filed as an exhibit to
the Registration Statement (the "Securities Agreement").
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to, and agrees with, each of the Underwriters that:
(a) The Company meets the requirements for the use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration statement
on Form S-3 (No._____) under the Act, which has become effective, for the
registration under the Act of the Securities (such registration statement,
including the exhibits thereto, as amended at the date of this Agreement,
is hereinafter called the "Registration Statement"). No stop order suspending
the effectiveness of the Registration Statement is in effect, and no proceedings
for such purpose are pending before or, to the knowledge of the Company,
threatened by the Commission. The Company proposes to file with the Commission
pursuant to Rule 424 under the Act a supplement or supplements to the form of
prospectus included in the Registration Statement relating to the Securities and
the plan of distribution thereof; such prospectus in the form in which it
appears in the Registration Statement is hereinafter called the "Basic
Prospectus"; and such supplemented form of prospectus, in the form in which it
shall be filed with the Commission pursuant to Rule 424 (including the Basic
Prospectus as so supplemented) is hereinafter called the "Final Prospectus." Any
preliminary form of the Final Prospectus which has heretofore been filed
pursuant to Rule 424 is hereinafter called the "Preliminary Final Prospectus."
Any reference herein to the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to Item 12
of Form S-3 which were filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") on or before the date of this Agreement, or the
issue date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be; and any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the Registration Statement,
the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus
shall be deemed to refer to and include the filing of any document under the
Exchange Act after the date of this Agreement, or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the
case may be, deemed to be incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is first filed or
transmitted for filing pursuant to Rule 424 under the Act, when, prior to the
Time of Delivery (as hereinafter defined), any amendment to the Registration
Statement becomes effective (including the filing of any document incorporated
by reference in the Registration Statement), when any supplement to the Final
Prospectus is filed with the Commission and at the Time of Delivery, (i) the
Registration Statement, as amended as of any such time, the Final Prospectus, as
amended or supplemented as of any such time, and, in the case of Securities
issued or to be issued pursuant to an Indenture, the Indenture, complied and
will comply in all material respects with the applicable requirements of the
Act, the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"),
and the Exchange Act and the respective rules thereunder and (ii) neither the
Registration Statement, as amended as of any such time, nor the Final
Prospectus, as amended or supplemented as of such time, contained or will
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein not misleading; provided, however, that the Company makes no
representations or warranties as to (i) the parts of the Registration Statement
which constitute the Statement of Eligibility and Qualification (Form T-1) under
the Trust Indenture Act of the Trustees (the "Form T-1s") or (ii) the
information contained in or omitted from the Registration Statement or the Final
Prospectus or any amendment thereof or supplement thereto in reliance upon and
in conformity with information relating to such Underwriter or the underwriting
arrangements furnished in writing to the Company by any Underwriter specifically
for use in the Registration Statement and the Final Prospectus.
(c) Each document incorporated by reference in the Registration Statement
and the Final Prospectus, at the time they were, or hereafter are, filed with
the Commission complied
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and, at any time when a prospectus relating to the Securities is required to be
delivered under the Act in connection with sales by any Underwriter or dealer,
will comply in all material respects with the Exchange Act and the rules and
regulations promulgated thereunder.
(d) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Final Prospectus and is duly qualified
to transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(e) Each subsidiary of the Company listed in Schedule III hereto (each, a
"Principal Subsidiary") has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Final Prospectus and is duly qualified
to transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole. The Principal Subsidiaries are currently the
only operating insurance companies that are "significant subsidiaries" of the
Company as that term is defined in Rule 1-02(w) of Regulation S-X of the rules
and regulations of the Commission under the Act.
(f) All of the issued shares of capital stock of each Principal Subsidiary
have been duly and validly authorized and issued, are fully paid and
nonassessable, and are owned of record directly or indirectly by the Company or
another Principal Subsidiary, as the case may be, free and clear of any security
interest, claim, lien or encumbrance.
(g) Each Principal Subsidiary is duly licensed or authorized as an insurer
or reinsurer in each jurisdiction where it is required to be so licensed, except
where the failure to be so licensed or authorized in any such jurisdiction does
not have a material adverse effect on the financial condition, business or
properties of the Company and its subsidiaries taken as a whole; the Company and
each Principal Subsidiary have made all required filings under applicable
insurance holding company statutes, and each is duly licensed or authorized as
an insurance holding company in each jurisdiction where it is required to be so
licensed, except where the failure to have made such filings or to be so
licensed or authorized in any such jurisdiction does not have a material adverse
effect on the financial condition, business or properties of the Company and its
subsidiaries taken as a whole; the Company and each Principal Subsidiary have
all necessary authorizations, approvals, orders, consents, registrations or
qualifications of and from all insurance regulatory authorities to conduct their
respective businesses as described in the Final Prospectus as amended or
supplemented, except where the failure to have such authorizations, approvals,
orders, consents, registrations or qualifications does not have a material
adverse effect on the financial condition, business or properties of the Company
and its subsidiaries taken as a whole; and none of the Company or any Principal
Subsidiary has received any notification from any insurance regulatory authority
to the effect that any additional authorization, approval, order, consent,
registration or qualification from such insurance
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regulatory authority is needed to be obtained by any of the Company or any
Principal Subsidiary in any case where it could be reasonably expected that (x)
the Company or any Principal Subsidiary would in fact be required either to
obtain any such additional authorization, approval, order, consent, registration
or qualification or cease or otherwise limit writing certain business and (y)
obtaining such authorization, approval, order, consent, license, certificate,
permit, registration or qualification or limiting such business would have a
material adverse effect on the business, financial position or results of
operations of the Company and its subsidiaries, taken as a whole.
(h) Each Principal Subsidiary is in compliance with the requirements of
the insurance laws and regulations of its state of incorporation and the
insurance laws and regulations of other jurisdictions which are applicable to
such Principal Subsidiary, and has filed all notices, reports, documents or
other information required to be filed thereunder, except where the failure to
so comply or file would not have a material adverse effect on the business,
financial position or results of operations of the Company and its subsidiaries,
taken as a whole.
(i) Other than as set forth in the Final Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its subsidiaries
is a party or to which any property of the Company or any of its subsidiaries is
the subject which, if determined adversely to the Company or any of its
subsidiaries, individually or in the aggregate, could reasonably be expected to
have a material adverse effect on the financial condition, business or
properties of the Company and its subsidiaries taken as a whole; and, to the
best of the Company's knowledge, no such proceedings are threatened.
(j) This Agreement has been duly authorized, executed and delivered by the
Company.
(k) The Securities have been duly authorized and, when issued and
delivered pursuant to this Agreement, such Securities will have been duly
executed, authenticated, issued and delivered (and, in the case of Securities
representing capital stock of the Company, will be fully paid and nonassessable)
and will constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the applicable Securities Agreement [and
the debt securities to be issued upon exercise of the [Debt Warrants] in
accordance with their terms have been duly authorized, and upon exercise of the
[Debt Warrants] in accordance with their terms, will be duly executed, issued
and delivered and constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the applicable Indenture]; such
Securities Agreement has been duly authorized and, in the case of Securities
issued [or to be issued] pursuant to an Indenture, such Indenture has been duly
qualified under the Trust Indenture Act and, at the Time of Delivery for any
Securities, each Securities Agreement will constitute a valid and legally
binding agreement of the Company, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, fraudulent transfer,
moratorium and other similar laws relating to or affecting creditors' rights
generally and to general principles of equity.
(l) The issuance and sale of the Securities [(and the debt securities to
be issued upon exercise of the [Debt Warrants] in accordance with their terms)],
and compliance by the Company with all of the provisions of the Securities [(and
the debt securities to be issued upon exercise of the [Debt Warrants] in
accordance with their terms)], the applicable Securities
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Agreement and this Agreement, will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument for borrowed money to which the Company or any Principal Subsidiary
is a party or by which the Company or any of its Principal Subsidiaries is bound
or to which any of the property or assets of the Company or any of its Principal
Subsidiaries is subject, nor will such action result in any violation of the
provisions of the Certificate of Incorporation or By-laws of the Company or any
of its Principal Subsidiaries or any statute or any order, rule or regulation of
any court or insurance regulatory authority or other governmental agency or body
having jurisdiction over the Company or any of its Principal Subsidiaries or any
of their properties, in each case other than such breaches, conflicts,
violations or defaults which, individually or in the aggregate, would not have a
material adverse effect on the Company and its subsidiaries taken as a whole,
and no authorization, approval, order, consent, registration or qualification of
or with any such court or insurance regulatory authority or other governmental
agency or body is required for the issue or sale of the Securities, except such
authorizations, approvals, orders, consents, registrations or qualifications as
may be required under state or foreign securities or Blue Sky laws or
qualifications of any Trustee under the Trust Indenture Act in connection with
the purchase and distribution of the Securities by the Underwriters, in each
case other than such authorizations, approvals, orders, consents, registrations
or qualifications which (individually or in the aggregate) the failure to make,
obtain or comply with would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(m) Except as described in or contemplated by the Registration Statement
and the Final Prospectus, there has not been any material adverse change in, or
any adverse development which materially affects, the business, properties,
financial condition or results of operations of the Company and its subsidiaries
taken as a whole from the dates as of which information is given in the
Registration Statement and the Final Prospectus; and, since the respective dates
as of which information is given in the Registration Statement and the Final
Prospectus, there has not been any material increase in the consolidated capital
stock (other than issuances of capital stock upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares and upon conversions
of convertible securities, in each case which were outstanding on the date of
the latest balance sheet incorporated by reference in the Final Prospectus) or
any material increase in the consolidated long-term debt of the Company and its
subsidiaries or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, taken as a whole, otherwise than as set forth
or contemplated in the Final Prospectus.
(n) There are no material contracts, agreements or understandings between
the Company and any person granting such person the right to require the Company
to file a registration statement under the Act with respect to any notes or debt
of the Company owned or to be owned by such person or to require the Company to
include such securities for registration pursuant to the Registration Statement
or pursuant to any other registration statement filed by the Company under the
Act.
(o) The Company is not, and after giving effect to the offering and sale
of the Securities and the application of the net proceeds therefrom as described
in the Final Prospectus,
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will not be an "investment company" or an entity "controlled" by an "investment
company," as such terms are defined in the Investment Company Act of 1940, as
amended.
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by the Company,
as to matters covered thereby, to each Underwriter.
2. PURCHASE AND SALE. The Company hereby agrees to sell to the several
Underwriters, and each Underwriter, upon the basis of the representations and
warranties herein contained, but subject to the conditions hereinafter stated,
agree, severally and not jointly, to purchase from the Company the respective
[principal amounts] [number] of the Securities set forth in Schedule II hereto
opposite their names [at ___% of the principal amount $_____ -- the purchase
price [-- plus accrued interest, if any, from _____] to the date of payment and
delivery] [for the purchase price of $_____ per [Debt Warrant][share of Series
__ Preferred Stock]].
3. PAYMENT AND DELIVERY OF THE SECURITIES. Delivery of and payment for
the Securities shall be made at 10:00 AM, New York City time, on [ ], or
at such time on such later date not more than three Business Days after the
foregoing date as the Representatives shall designate, which date and time may
be postponed by agreement between the Representatives and the Company or as
provided in Section 10 hereof (such date and time of delivery and payment for
the Securities being herein called the "Time of Delivery"). Delivery of the
Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same day funds to an account specified by
the Company. Delivery of the Securities shall be made through the facilities of
the Depositary Trust Company unless the Representatives otherwise instruct.
4. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
5. COMPANY COVENANTS. The Company agrees with each of the Underwriters of
the Securities:
(a) (i) To prepare the Final Prospectus as amended and supplemented in
relation to the Securities in a form approved by the Representatives and to
timely file such Final Prospectus pursuant to Rule 424(b) under the Act; (ii) to
make no further amendment or any supplement to the Registration Statement or
Final Prospectus as amended or supplemented after the date hereof and prior to
the Time of Delivery for the Securities unless the Representatives shall have
had a reasonable opportunity to review and comment upon any such amendment or
supplement prior to any filing thereof; (iii) to advise the Representatives
promptly of any such amendment or supplement after such Time of Delivery and
furnish the Representatives with copies thereof; (iv) to file promptly all
reports and any definitive proxy or information statements required to be filed
by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Securities, and during such same
period to advise the Representatives, promptly after it receives notice thereof,
of (I) the time when any amendment to the Registration
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Statement has been filed or becomes effective or any supplement to the Final
Prospectus or any amended Final Prospectus has been filed with the Commission,
(II) the issuance by the Commission of any stop order or of any order preventing
or suspending the use of the Final Prospectus, (III) the suspension of the
qualification of the Securities for offering or sale in any jurisdiction or of
the initiation or threatening of any proceeding for any such purpose, or (IV)
any request by the Commission for the amending or supplementing of the
Registration Statement or the Final Prospectus or for additional information;
and, in the event of the issuance of any such stop order or of any such order
preventing or suspending the use of the Final Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal.
(b) Promptly from time to time to take such action as the Representatives
may reasonably request to qualify the Securities for offering and sale under the
securities and insurance securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as long as
may be necessary to complete the distribution of the Securities, provided that
in connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process in any
jurisdiction.
(c) To furnish the Underwriters with copies of the Final Prospectus as
amended or supplemented in such quantities as the Representatives may from time
to time reasonably request, and, if the delivery of a prospectus is required at
any time in connection with the offering or sale of the Securities, and if at
such time any event shall have occurred as a result of which the Final
Prospectus as then amended or supplemented would include an untrue statement of
a material fact or omit to state any material fact necessary in order to make
the statements therein, in light of the circumstances under which they were made
when such Final Prospectus is delivered, not misleading, or, if for any other
reason it shall be necessary during such period to amend or supplement the Final
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Final Prospectus in order to comply with the Act, the Exchange
Act or the Trust Indenture Act, to notify the Representatives and upon their
request to prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives may from time to time
reasonably request of an amended Final Prospectus or a supplement to the Final
Prospectus which will correct such statement or omission or effect such
compliance.
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement, 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.
(e) During the period beginning from the date hereof and continuing to and
including the latter of (i) the termination of trading restrictions for the
Securities, as notified to the Company by the Representatives or their counsel
and (ii) the Time of Delivery for the Securities, not to offer, sell, contract
to sell or otherwise dispose of any securities of the Company which are
substantially similar to the Securities, without the prior written consent of
the Representatives, which consent shall not be unreasonably withheld.
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(f) The Company will not take, directly or indirectly, any action designed
to or that would constitute or that might reasonably be expected to cause or
result in, under the Exchange Act or otherwise, stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of the
Securities.
6. FEES AND EXPENSES. The Company covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid the following: (i)
the fees, disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
expenses incurred in connection with the preparation, printing and filing of the
Registration Statement, Basic Prospectus, any Preliminary Final Prospectus and
the Final 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 this Agreement, any Securities Agreement, any Blue Sky
Survey and any Legal Investment Memoranda in connection with the offering,
purchase, sale and delivery of the Securities; (iii) all reasonable expenses in
connection with the qualification of the Securities for offering and sale under
state securities and insurance securities laws as provided in Section 5(b)
hereof, including the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky and Legal Investment surveys; (iv) the filing fees incident to securing
any required review by the National Association of Securities Dealers, Inc. of
the terms of the sale of the Securities; (v) any fees charged by securities
rating services for rating the Securities; (vi) the cost of preparing the
Securities; (vii) the fees and expenses of any Trustee, Debt Warrant Agent,
Paying Agent or Transfer Agent and the fees and disbursements of counsel for any
such Trustee, Debt Warrant Agent, Paying Agent or Transfer Agent in connection
with a Securities Agreement and the Securities issued pursuant to any Securities
Agreement; and (viii) all other costs and expenses incident to the performance
of its obligations hereunder which are not otherwise specifically provided in
this Section. It is understood, however, that, except as provided in this
Section, Section 8 and Section 9 hereof, the Underwriters will pay all of their
own costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Securities by them, and any advertising expenses connected
with any offers they may make.
7. CONDITIONS TO UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters to purchase the Securities shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein as of
the execution of this Agreement and as of the Time of Delivery for the
Securities, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus as amended or supplemented in relation to the
Securities shall have been filed with the Commission pursuant to Rule 424(b)
within the applicable time period prescribed for such filing by the rules and
regulations under the Act and in accordance with Section 5(a) hereof; no stop
order suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to the
Representatives' reasonable satisfaction.
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(b) [ ], counsel for the Company, shall have furnished to you their
written opinion, dated the Time of Delivery for the Securities, in form and
substance reasonably satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own or lease, as the case may be, and
to operate its properties and conduct its business as described in the
Final Prospectus as amended and supplemented;
(ii) This Agreement has been duly authorized, executed and
delivered by the Company;
(iii) The Securities have been duly authorized, and (assuming their
due authentication by the Trustee, if applicable) have been duly executed,
issued and delivered and constitute valid and legally binding obligations
of the Company entitled to the benefits provided by the applicable
Securities Agreement, [and the debt securities to be issued upon exercise
of the [Debt Warrants] in accordance with their terms have been duly
authorized, and upon exercise of the [Debt Warrants] in accordance with
their terms, will be duly executed, issued and delivered and constitute
valid and legally binding obligations of the Company entitled to the
benefits provided by the applicable Indenture;] and the Securities and the
applicable Securities Agreement conform in all material respects to the
descriptions thereof in the Final Prospectus as amended or supplemented;
(iv) The applicable Securities Agreement has been duly authorized,
executed and delivered by the Company, and, in the case of the Certificate
of Designation, has been filed with the Secretary of State of the State of
Delaware, and constitutes a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles; and, in the case of the Indenture, has been duly
qualified under the Trust Indenture Act;
(v) The Registration Statement and the Final Prospectus as amended
or supplemented and any further amendments thereto made by the Company
prior to such Time of Delivery for the Securities (in each case other than
with respect to the financial statements, financial and accounting data and
related schedules incorporated by reference or included therein or excluded
therefrom, or the exhibits to the Registration Statement, including the
Form T-1, as to which such counsel need express no opinion or belief),
appear on their face to be appropriately responsive in all material
respects to the requirements of the Act and the Trust Indenture Act and the
applicable rules and regulations of the Commission thereunder; provided
that, such counsel shall not be deemed to be passing upon and shall not be
required to assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement and
Final Prospectus;
(vi) The issuance and sale of the Securities [(and the debt
securities to be issued upon exercise of the [Debt Warrants] in accordance
with their terms)], and compliance by the Company with all of the
provisions of the Securities [(and the debt
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securities to be issued upon exercise of the [Debt Warrants] in accordance
with their terms)], the applicable Securities Agreement and this Agreement
and the consummation by the Company of the transactions contemplated
therein and herein will not conflict with or result in a breach of any of
the provisions of the Act, the Exchange Act, the Trust Indenture Act or the
rules and regulations issued pursuant to each such act.
(vii) All consents, approvals, authorizations, orders,
registrations, and qualifications of or with any United States court or
governmental agency or body required for the issue and sale of the
Securities [(including the debt securities to be issued upon exercise of
the [Debt Warrants] in accordance with their terms)] by the Company or the
consummation by the Company of the transactions contemplated by this
Agreement under the Act, the Exchange Act, the Trust Indenture Act or the
rules and regulations issued pursuant to each act have been obtained or
made.
(viii) As such counsel, such counsel reviewed the Registration
Statement and Final Prospectus as amended or supplemented, participated in
discussions with representatives of the Underwriters and of the Company and
its accountants at which contents of the Registration Statement and Final
Prospectus as amended or supplemented and related matters were discussed;
on the basis of the information that such counsel gained in the course of
the performance of their services referred to above, although such counsel
shall not be deemed to be passing upon and shall not assume any
responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Final Prospectus
and not be required to have made an independent check or verification
thereof (except as described in paragraph (v) hereof), on the basis of the
foregoing, no facts have come to the attention of such counsel in the
course of such review which have led such counsel to believe that, as of
its effective date, the Registration Statement or any further amendment
thereto made by the Company prior to the Time of Delivery (other than the
financial statements and the financial and accounting data and related
schedules incorporated by reference or included therein or excluded
therefrom, or the exhibits to the Registration Statement, including the
Form T-1s, as to which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading or that, as of its date or the Time of Delivery, the Final
Prospectus as amended or supplemented or any further amendment or
supplement thereto made by the Company prior to the Time of Delivery (other
than the financial statements and financial and accounting data and related
schedules incorporated by reference or included therein or excluded
therefrom, or the exhibits to the Registration Statement including the Form
T-1s, as to which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact necessary
to make the statements therein, in light of the circumstances under which
they were made not misleading; and
(ix) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended.
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(c) Xxxxxxx X. XxXxxx, Vice President and General Counsel of the Company,
shall have furnished to you his written opinion, dated the Time of Delivery for
the Securities, in form and substance reasonably satisfactory to you, to the
effect that:
(i) Each of Allstate Insurance Company ("AIC") and Allstate Life
Insurance Company ("XXXX") has been duly incorporated and is validly
existing as an insurance corporation under the laws of the State of
Illinois, with corporate power and authority to own its properties and
conduct its business as described in the Final Prospectus as amended or
supplemented (such counsel being entitled to rely, with respect to the
opinion in this clause (i), upon the opinions of members of the Company's
in-house legal staff);
(ii) All of the issued shares of capital stock of each Principal
Subsidiary have been duly and validly authorized and issued, are fully paid
and nonassessable, and are owned of record directly or indirectly by the
Company, AIC or XXXX, as the case may be, free and clear of any perfected
security interest and, to the knowledge of such counsel, after due inquiry,
any other security interest, claim, lien or encumbrance (such counsel being
entitled to rely, with respect to the opinion in this clause (ii), upon
opinions of local or in-house counsel and, in respect of matters of fact,
upon certificates of officers of the Company or its subsidiaries, provided
that such counsel shall state that he believes that both you and he are
justified in relying upon such opinions or certificates);
(iii) Each Principal Subsidiary is duly licensed or authorized as an
insurer or reinsurer in each jurisdiction where it is required to be so
licensed, except where the failure to be so licensed or authorized in any
such jurisdiction does not have a material adverse effect on the financial
condition, business or properties of the Company and its subsidiaries taken
as a whole; the Company and each Principal Subsidiary have made all
required filings under applicable insurance holding company statutes, and
each is duly licensed or authorized as an insurance holding company in each
jurisdiction where it is required to be so licensed, except where the
failure to have made such filings or to be so licensed or authorized in any
such jurisdiction does not have a material adverse effect on the financial
condition, business or properties of the Company and its subsidiaries taken
as a whole; the Company and each Principal Subsidiary have all necessary
authorizations, approvals, orders, consents, registrations or
qualifications of and from all insurance regulatory authorities to conduct
their respective businesses as described in the Final Prospectus as amended
or supplemented, except where the failure to have such authorizations,
approvals, orders, consents, registrations or qualifications does not have
a material adverse effect on the financial condition, business or
properties of the Company and its subsidiaries taken as a whole; and none
of the Company or any Principal Subsidiary has received any notification
from any insurance regulatory authority to the effect that any additional
authorization, approval, order, consent, registration or qualification from
such insurance regulatory authority is needed to be obtained by any of the
Company or any Principal Subsidiary in any case where it could be
reasonably expected that (x) the Company or any Principal Subsidiary would
in fact be required either to obtain any such additional authorization,
approval, order, consent, registration or qualification or cease or
otherwise limit writing certain business and (y) obtaining such
authorization, approval, order, consent, license, certificate, permit,
registration or qualification or limiting such business would have a
material adverse effect on the
11
business, financial position or results of operations of the Company and
its subsidiaries, taken as a whole (such counsel being entitled to rely,
with respect to the opinion in this clause (iii), upon opinions of local or
in-house counsel and, in respect of matters of fact, upon certificates of
officers of the Company or its subsidiaries, provided that such counsel
shall state that he believes that both you and he are justified in relying
upon such opinions and certificates);
(iv) To the best of such counsel's knowledge, after due inquiry,
each Principal Subsidiary is in compliance with the requirements of the
insurance laws and regulations of its state of incorporation and the
insurance laws and regulations of other jurisdictions which are applicable
to such Principal Subsidiary, and has filed all notices, reports, documents
or other information required to be filed thereunder, or is subject to no
material liability or disability by reason of the failure to so comply or
file (such counsel being entitled to rely, with respect to this clause
(iv), upon opinions of local or in-house counsel and, in respect of matters
of fact, upon certificates of officers of the Company or its subsidiaries,
provided that such counsel shall state that he believes that both you and
he are justified in relying upon such opinions and certificates);
(v) To the best of such counsel's knowledge, after due inquiry,
and other than as set forth in the Final Prospectus as amended or
supplemented, there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or to which any
property of the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries,
individually or in the aggregate, could reasonably be expected to have a
material adverse effect on the financial condition, business or properties
of the Company and its subsidiaries taken as a whole; and, to the best of
such counsel's knowledge, no such proceedings are threatened;
(vi) The issuance and sale of the Securities [(and the debt
securities to be issued upon exercise of the [Debt Warrants] in accordance
with their terms), and compliance by the Company with all of the provisions
of the Securities (and the debt securities to be issued upon exercise of
the [Debt Warrants] in accordance with their terms)], the applicable
Securities Agreement and this Agreement and the consummation by the Company
of the transactions contemplated therein and herein will not conflict with
or result in a breach of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or
other material agreement or instrument relating to the Company or any of
its subsidiaries, as such agreements or instruments have been amended
(which indentures, mortgages, deeds of trust, loan agreements or other
agreements or instruments may be specified by such counsel on a schedule
attached to his opinion); nor will any such action result in any violation
of the provisions of the Certificate of Incorporation or the Bylaws of the
Company or any of its Principal Subsidiaries or any applicable United
States law or statute or any order, rule or regulation of any United States
court or governmental agency or body having jurisdiction over the Company,
its subsidiaries or any of their respective properties, provided, that the
foregoing opinion is limited to those statutes, laws, rules and regulations
of the United States of America, the General Corporation Law of the State
of Delaware and the State of Illinois, in each case, which, in the opinion
of such counsel, are normally applicable to transactions of the type
contemplated by this Agreement, and provided further, that no
12
opinion need be given with respect to (A) the Act, the Exchange Act, the
Trust Indenture Act, the rules and regulations issued pursuant to each such
act, any order, rule or regulation made or established by any insurance
official or regulatory authority or the National Association of Securities
Dealers, Inc., or state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters or (B)
conflicts, breaches or violations which individually and in the aggregate
both would not have a material adverse effect on the financial condition,
business or operations of the Company and its subsidiaries taken as a whole
and would not have a material adverse effect on the sale or ownership of
the Securities (such counsel being entitled to rely, with respect to the
opinion in this clause (vi), upon opinions of local or in-house counsel
and, in respect of matters of fact, upon certificates of officers of the
Company or its subsidiaries, provided that such counsel shall state that he
believes that both you and he are justified in relying upon such opinions
and certificates);
(vii) No consent, approval, authorization, order, registration or
qualification of or with any United States court or governmental agency or
body is required for the issue and sale of the Securities by the Company or
the consummation by the Company of the transactions contemplated by this
Agreement, except that such counsel need not express any opinion with
respect to such consents, approvals, authorizations, orders, registrations
or qualifications (A) as may be required under the Act, the Exchange Act,
the Trust Indenture Act, the rules and regulations issued pursuant to each
such act, any order, rule or regulation made or established by any
insurance official or regulatory authority or the National Association of
Securities Dealers, Inc., (B) as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the
Securities by the Underwriters, (C) the absence of which individually or in
the aggregate both are not material to the Company and its subsidiaries
taken as a whole and would not have a material adverse effect on the sale
or ownership of the Securities or (D) as may be required under foreign laws
in connection with the purchase and distribution of the Securities by any
international managers; provided, that the foregoing opinion is limited to
those consents, approvals, authorizations, orders, registrations and
qualifications under laws which, in the experience of such counsel, are
normally applicable to transactions of the type contemplated by this
Agreement;
(viii) To the best of such counsel's knowledge, after due inquiry,
the Company and its subsidiaries, as applicable, have filed all notices,
reports, documents or other information required to be filed pursuant to,
and have obtained all authorizations, approvals, orders, consents,
registrations or qualifications required to be obtained under, and have
otherwise complied with all requirements of, all applicable insurance laws
and regulations known to such counsel to be normally applicable to the
transactions contemplated by this Agreement in connection with the issuance
and sale by the Company of the Securities and, except as have been obtained
pursuant to the foregoing clause, no filing, authorization, approval,
order, consent, registration or qualification of or with any insurance
regulatory agency having jurisdiction over the Company or any of its
subsidiaries or any of their properties known to such counsel to be
normally applicable to the transactions contemplated by this Agreement or
the applicable Securities Agreement is required in connection with the
issuance and sale by the Company of the Securities or the consummation by
the Company of the transactions contemplated by this Agreement ,
13
except such filings, authorizations, approvals, orders, consents,
registrations or qualifications which (individually or in the aggregate)
the failure to make, obtain or comply with would not have a material
adverse effect on the financial condition, business or properties of the
Company and its subsidiaries taken as a whole or a material adverse effect
on the sale or ownership of the Securities;
(ix) To the best of such counsel's knowledge, after due inquiry,
there are no material contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to file a registration statement under the Act with respect to any
notes or debt of the Company owned or to be owned by such person or to
require the Company to include such securities for registration pursuant to
the Registration Statement or pursuant to any other registration statement
filed by the Company under the Act;
(x) As general counsel to the Company, such counsel reviewed the
Registration Statement and Final Prospectus as amended or supplemented,
participated in various discussions with representatives of the
Underwriters and of the Company and its accountants at which contents of
the Registration Statement and Final Prospectus as amended or supplemented
were discussed; on the basis of the information that such counsel gained in
the course of his activities referred to above and as general counsel, such
counsel confirms that the Registration Statement, as of its effective date,
and the Final Prospectus, as amended or supplemented (in each case other
than with respect to the financial statements, financial and accounting
data and related schedules incorporated by reference or included therein or
excluded therefrom, as to which such counsel need express no opinion or
belief), appear on their face to be appropriately responsive in all
material respects to the requirements of the Act and the applicable rules
and regulations of the Commission thereunder; and, although such counsel is
not passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and Final Prospectus as amended or supplemented (except as
expressly set forth in such opinion), on the basis of the foregoing, no
facts have come to the attention of such counsel in the course of such
review which has caused such counsel to believe that, as of its effective
date, the Registration Statement or any further amendment thereto made by
the Company prior to such Time of Delivery (other than the financial
statements and financial and accounting data and related schedules
incorporated by reference or included therein or excluded therefrom or the
exhibits to the Registration Statement, including the Form T-1, and other
than information under the captions "Description of Debt Securities,"
"Description of Capital Stock, ""Description of Depositary Shares,"
"Description of Warrants," "Description of Stock Purchase Contracts and
Stock Purchase Units," "Description of Trust Preferred Securities,"
"Description of Preferred Securities Guarantees" and "Plan of Distribution"
in the Basic Prospectus and in the description of Securities and
underwriting matters contained in the Final Prospectus as amended or
supplemented, as to which such counsel need express no opinion) contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading or that, as of its date, the Final Prospectus as amended or
supplemented or any further amendment or supplement thereto made by the
Company prior to such Time of Delivery (other than the financial statements
and financial and accounting data and related schedules incorporated by
reference or included therein or excluded therefrom or the exhibits to the
Registration Statement, including the Form T-1, and other than information
under the captions "Description of Debt Securities," "Description of
Capital Stock," "Description of Depositary Shares," "Description of
Warrants," "Description of Stock Purchase Contracts and Stock Purchase
Units," "Description of Trust Preferred Securities," "Description of
Preferred Securities Guarantees" and "Plan of Distribution" in the Basic
Prospectus and in the description of Securities and underwriting matters
contained in the Final Prospectus as amended or supplemented, as to which
such counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that,
as of the Time of Delivery, either the Registration Statement or the Final
Prospectus as amended or supplemented or any further amendment or
supplement (when considered together with the document to which such
supplement relates) thereto made by the Company prior to such Time of
Delivery (other than the financial statements and
14
financial and accounting data and related schedules incorporated by
reference or included therein or excluded therefrom or the exhibits to the
Registration Statement, including the Form T-1, and other than information
under the captions "Description of Debt Securities," "Description of
Capital Stock," "Description of Depositary Shares," "Description of
Warrants," "Description of Stock Purchase Contracts and Stock Purchase
Units," "Description of Trust Preferred Securities," "Description of
Preferred Securities Guarantees" and "Plan of Distribution" in the Basic
Prospectus and in the description of Securities and underwriting matters
contained in the Final Prospectus as amended or supplemented, as to which
such counsel need express no opinion) contains an untrue statement of a
material fact or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and he does not know of any amendment to the
Registration Statement required to be filed or of any contracts or other
documents of a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by reference into the
Final Prospectus as amended or supplemented or required to be described in
the Registration Statement or the Final Prospectus as amended or
supplemented which are not filed or described as required, in each case,
other than with respect to the information under the captions "Description
of Debt Securities," "Description of Capital Stock," "Description of
Depositary Shares," "Description of Warrants," "Description of Stock
Purchase Contracts and Stock Purchase Units," "Description of Trust
Preferred Securities," "Description of Preferred Securities Guarantees" and
"Plan of Distribution" in the Basic Prospectus and in the description of
Securities and underwriting matters contained in the Final Prospectus as
amended or supplemented; and
(xi) On the basis of the information that such counsel gained in
the course of the review referred to in paragraph (x) above and as general
counsel (but without passing upon or assuming any responsibility for the
accuracy, completeness or fairness of the statements contained in the
documents described below), such counsel confirms that no facts have come
to the attention of such counsel in the course of such review which have
caused such counsel to believe that the documents incorporated by reference
in the Final Prospectus as amended or supplemented (other than the
financial statements and financial and accounting data and related
schedules incorporated by reference or included therein
15
or excluded therefrom, as to which such counsel need express no opinion),
when they became effective or were filed with the Commission, as the case
may be, did not comply as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder; and he has no reason to
believe that any of such documents, when they became effective or were so
filed, as the case may be, contained, in the case of a registration
statement which became effective under the Act, an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or, in
the case of other documents that were filed under the Act or the Exchange
Act with the Commission, an untrue statement of a material fact or omitted
to state a material fact necessary to make the statements therein, in light
of the circumstances under which they were made not misleading.
(d) The Representatives shall have received from [ ], counsel for the
Underwriters, such opinion or opinions, dated the Time of Delivery and addressed
to the Representatives, with respect to the issuance and sale of the Securities,
the Final Prospectus as amended and supplemented and other related matters as
the Representatives may reasonably require, and the Company shall have furnished
to such counsel such documents as they request for this purpose of enabling them
to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate
of the Company, signed by the Chairman of the Board, Chief Executive Officer,
President, Chief Operating Officer, Chief Financial Officer, Secretary, General
Counsel or Treasurer of the Company, dated the Time of Delivery, to the effect
that the signatory of such certificate has carefully examined the Registration
Statement, the Final Prospectus and amendments and supplements thereto and this
Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Time of Delivery with the
same effect as if made on the Time of Delivery and the Company has complied
with all agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Time of Delivery;
(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the Final Prospectus there has occurred no
event required to be set forth in an amendment or supplement to the
Registration Statement or Final Prospectus, and there has been no document
required to be filed under the Act and the rules and regulations thereunder
which, upon filing, would be deemed to be incorporated by reference in the
Final Prospectus which has not been so filed.
(f) On the date hereof [ ] shall have furnished to the Representatives
a letter, dated the date hereof, to the effect set forth in Schedule IV hereto.
As of the Time of Delivery, [ ] shall have furnished to the Representatives
a letter, dated as of the Time of Delivery, reaffirming, as of such date, all of
the statements set forth in Schedule IV hereto and otherwise in form and
substance satisfactory to the Representatives.
16
(g) Subsequent to the effective date of this Agreement, there shall not
have been any decrease in the rating of any of the Company's debt securities or
financial strength or claims paying ability by any of Xxxxx'x Investor Services,
Inc. or Standard & Poor's Corporation or any public notice given of any intended
or potential decrease in any such rating or of a possible change in any such
rating that does not indicate the direction of the possible change.
(h) Prior to or at the Time of Delivery, the Company shall have furnished
or shall furnish to the Representatives such additional certificates of officers
of the Company as to such other matters as the Representatives may reasonably
request.
If any of the conditions specified in this Section 7 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be cancelled at,
or at any time prior to, the Time of Delivery by the Representatives. Notice of
such cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
(i) The documents required to be delivered by this Section 7 shall be
delivered at the office of [ ], counsel to the Underwriters, at [ ], at
the Time of Delivery.
8. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the Securities
provided herein is not consummated because any condition to the obligations of
the Underwriters set forth in Section 7 (other than Section 7(d)) hereof is not
satisfied, because of any termination pursuant to Section 11(i) hereof or
because of any refusal, inability or failure by the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally through [ ] on demand for all reasonable out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Securities.
9. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each Underwriter,
the directors, officers, employees and agents of each Underwriter and each
person who controls any Underwriter, within the meaning of either the Act or the
Exchange Act, against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation at common law
or otherwise, insofar as: (i) such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto; or (ii) arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading. The
Company agrees to reimburse each such indemnified party, as incurred, for any
legal or other expenses reasonably incurred by
17
them in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case arising in connection with this Section 9 to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter specifically for
inclusion therein, and, provided, further, that the Company shall not be liable
to any Underwriter under the indemnity agreement in this subsection (a) with
respect to any Preliminary Final Prospectus, the Final Prospectus or the Final
Prospectus as amended or supplemented, as the case may be, to the extent that
any such loss, claim, damage or liability of such Underwriter results from the
fact such Underwriter sold the Securities to a person to whom there was not sent
or given, at or prior to the written confirmation of such sale, a copy of the
Final Prospectus or of the Final Prospectus as then amended or supplemented,
whichever is most recent, in any case where such delivery is required by the Act
if the Company had previously furnished copies thereof to such Underwriter and
the loss, claim, damage or liability of such Underwriter results from an untrue
statement or omission of a material fact contained in the Preliminary Final
Prospectus which was corrected in the Final Prospectus (or the Final Prospectus
as amended or supplemented). This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter, severally and not jointly, agrees to indemnify and
hold harmless the Company, each of its directors, each of its officers who signs
the Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act against any losses, claims,
damages or liabilities to which such indemnified party may become subject, under
the Act, the Exchange Act or other Federal or state statutory law or regulation,
at common law or otherwise, insofar as: (i) such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement as originally filed or in any amendment thereof, or in
the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
or in any amendment thereof or supplement thereto; or (ii) arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case of clauses (i) or (ii) above, solely to the extent that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in the Registration Statement as originally filed or in any
amendment thereof, or in the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus, or in any amendment thereof or supplement thereto in
reliance upon and in conformity with written information [relating to such
Underwriter] furnished to the Company by or on behalf of such Underwriter
specifically for inclusion therein. This indemnity agreement will be in addition
to any liability which any Underwriter may otherwise have. The Company
acknowledges that the only information furnished in writing by or on behalf of
the several Underwriters for inclusion in any Preliminary Final Prospectus or
Final Prospectus is as follows: [under the heading "Underwriting" or "Plan of
Distribution," (i) the list of Underwriters and their respective participation
in the sale of the Securities, (ii) the sentences related to concessions and
reallowances, and (iii) the paragraph related to stabilization, syndicate
covering transactions and penalty bids in any Preliminary Final Prospectus and
the Final Prospectus.]
(c) Promptly after receipt by an indemnified party under this Section 9 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to
18
be made against the indemnifying party under this Section 9, notify the
indemnifying party in writing of the commencement thereof; but the failure so to
notify the indemnifying party: (i) will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it did not otherwise learn
of such action and such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses; and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below) and to participate in and assume the defense of the
claim associated with such action; provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if: (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest; (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party; (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action; or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise, or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action),
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 9 is unavailable to, or insufficient to hold harmless, an
indemnified party for any reason, the Company and the Underwriters severally
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company
and one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the one
hand, and by the Underwriters, on the other, from the offering of the
Securities; provided, however, that in no case shall any Underwriter (except as
may be provided in any agreement among underwriters relating to the offering of
the Securities) be responsible for any amount in excess of the total price at
which the applicable Securities underwritten by it and distributed to the public
were offered to the public. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the
Underwriters severally shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company, on the one hand, and of the Underwriters, on the other, in connection
with the statements or omissions which resulted in such
19
Losses as well as any other relevant equitable considerations. Benefits received
by the Company shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) received by it, and benefits received by
the Underwriters shall be deemed to be equal to the total underwriting discounts
and commissions, in each case as set forth on the cover page of the Final
Prospectus. Relative fault shall be determined by reference to, among other
things: (i) whether any untrue or any alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information provided by the Company, on the one hand, or the Underwriters, on
the other; (ii) the intent of the parties and their relative knowledge; (iii)
access to information; and (iv) the opportunity to correct or prevent such
untrue statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 9, each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
10. DEFAULTING UNDERWRITERS. If any one or more Underwriters shall fail to
purchase and pay for any of the Securities agreed to be purchased by the
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its obligations under this Agreement,
the remaining Underwriters shall be obligated severally to take up and pay for
(in the respective proportions which the amount of Securities set forth opposite
their names on Schedule II hereto bears to the aggregate amount of Securities
set forth opposite the names of all the remaining Underwriters) the Securities
which the defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that in the event that the aggregate amount of the Securities
which the defaulting Underwriter or Underwriters agreed but failed to purchase
shall exceed 10% of the aggregate amount of the Securities set forth on Schedule
II hereto, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Securities, and if
such non-defaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without any liability to any non-defaulting Underwriter
or the Company. In the event of a default by any Underwriter as set forth in
this Section 10, the Time of Delivery shall be postponed for such period, not
exceeding five Business Days, as the Representatives shall determine in order
that the required changes to the Registration Statement and the Final Prospectus
or in any other documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its liability, if
any, to the Company and any non-defaulting Underwriter for damages occasioned by
its default hereunder.
11. TERMINATION. This Agreement is subject to termination by notice given
to the Company by the Representatives prior to delivery of and payment for the
Securities, if at any time prior to such time (i) trading in the Company's
securities shall have been suspended by the
20
Commission, (ii) trading in securities generally on the New York Stock Exchange
shall have been suspended or limited or minimum prices shall have been
established on such Exchange, (iii) a banking moratorium shall have been
declared either by Federal or New York State authorities or (iv) there shall
have occurred any outbreak or escalation of hostilities, declaration by the
United States of a national emergency or war, or other calamity or crisis the
effect of which on financial markets is such as to make it, in the reasonable
judgment of the Representatives, impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the Final Prospectus
(exclusive of any supplements thereto).
12. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of the several Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 9 hereof, and will survive the delivery of and payment for the
Securities. The provisions of Section 8 and 9 hereof shall survive the
termination or cancellation of this Agreement.
13. NOTICES. All communications hereunder shall be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to [ ], with a copy to [ ]; or if sent to the
Company, will be mailed, delivered or telefaxed to the address of the Company
set forth in the Registration Statement, Attention: Secretary.
14. SUCCESSORS AND ASSIGNS. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective, successors and the
officers, directors, employees, agent and controlling persons referred to in
Section 9 hereof, and no other person shall acquire or have any right under or
by virtue of this Agreement.
15. TIME; "BUSINESS DAY." As used herein, the term "business day" shall
mean any day other than a Saturday, Sunday or a legal holiday or a day on which
banking institutions or trust companies are authorized or obligated by law to
close in New York City.
16. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
17. COUNTERPARTS. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be deemed to
be an original, but all such counterparts shall together constitute one and the
same instrument.
21
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
THE ALLSTATE CORPORATION
By:
------------------------------------
Name:
Title:
Accepted as of the date hereof:
[Underwriters]
22
SCHEDULE I
REPRESENTATIVES
I-1
SCHEDULE II
Principal Amount of
Underwriters Securities to be Purchased
------------ --------------------------
Total...................... $
II-1
SCHEDULE III
PRINCIPAL SUBSIDIARIES JURISDICTION OF INCORPORATION
---------------------- -----------------------------
Allstate Insurance Company Illinois
Allstate Life Insurance Company Illinois
III-1
SCHEDULE IV
Pursuant to Section 7(f) of the
Underwriting Agreement, the
accountants shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Act and the
Exchange Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and financial
statement schedules, certain summary and selected consolidated financial
and operating data, and any supplementary financial information and
schedules (and, if applicable, pro forma financial information) audited by
them and included or incorporated by reference in the Final Prospectus as
amended or supplemented or the Registration Statement comply as to form in
all material respects with the applicable accounting requirements of the
Act and the Exchange Act and the related published rules and regulations
thereunder; and, they have performed a review in accordance with standards
established under Statement of Auditing Standards No. 71 established by the
American Institute of Certified Public Accountants of the unaudited
consolidated interim financial statements, and any supplementary financial
information and schedules, selected financial data, pro forma financial
information, prospective financial statements and/or condensed financial
statements derived from audited financial statements of the Company
included or incorporated by reference in the Final Prospectus, as amended
or supplemented or the Registration Statement, for the periods specified in
such letter, and, as indicated in their report thereon, copies of which
have been furnished to the representatives of the Underwriters (the
"Representatives");
(iii) On the basis of limited procedures, not constituting an audit
in accordance with generally accepted auditing standards, consisting of a
reading of the unaudited financial statements and other information
referred to below, a reading of the latest available interim and annual
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included or incorporated by reference
in the Final Prospectus as amended or supplemented, inquiries of officials
of the Company and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused them
to believe that:
(A) the unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
and certain summary and selected consolidated financial and operating
data included or incorporated by reference in the Final Prospectus as
amended or supplemented do not comply as to form in all material
respects with the applicable accounting requirements of the Act and
the Exchange Act and the related published rules and regulations
thereunder and generally accepted accounting principles, applied on a
basis substantially consistent with that of the audited financial
statements included or incorporated by reference in the Final
Prospectus;
IV-1
(B) any other unaudited income statement data and balance
sheet items included or incorporated by reference in the Final
Prospectus as amended or supplemented do not agree with the
corresponding items in the unaudited consolidated financial statements
from which such data and items were derived, and any such unaudited
data and items were not determined on a basis substantially consistent
with the basis for the corresponding amounts in the audited
consolidated financial statements included or incorporated by
reference in the Final Prospectus as amended or supplemented;
(C) the unaudited financial statements which were not
included or incorporated by reference in the Final Prospectus as
amended or supplemented but from which were derived any unaudited
condensed financial statements referred to in Clause (A) and any
unaudited income statement data and balance sheet items included or
incorporated by reference in the Final Prospectus as amended or
supplemented and referred to in Clause (B) were not determined on a
basis substantially consistent with the basis for the audited
consolidated financial statements included or incorporated by
reference in the Final Prospectus as amended or supplemented;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Final
Prospectus as amended or supplemented do not comply as to form in all
material respects with the applicable accounting requirements of the
Act and the Exchange Act and the published rules and regulations
thereunder or the pro forma adjustments have not been properly applied
to the historical amounts in the compilation of those statements.
(E) as of a specified date not more than five business days
prior to the date of such letter, there have been any changes in the
consolidated capital stock or any increase in the consolidated
borrowings or consolidated reserve for property-liability insurance
claims and claims expense or consolidated reserve for life insurance
policy benefits, or asset reserves of the Company and its
subsidiaries, or any decreases in consolidated fixed income securities
available for sale, consolidated equity securities, consolidated
investments or shareholder equity, or any decrease in AIC's or XXXX'x
statutory capital and surplus, or other items specified by the
Representatives, in each case as compared with amounts shown in the
latest balance sheet included or incorporated by reference in the
Final Prospectus as amended or supplemented, except in each case for
changes, increases or decreases which the Final Prospectus discloses
have occurred or may occur or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Final
Prospectus as amended or supplemented to the specified date referred
to in Clause (E) there were any decreases in consolidated premiums
earned, consolidated net investment income, or other items specified
by the Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable
IV-2
period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in each
case for decreases or increases which the Final Prospectus discloses
have occurred or may occur or which are described in such letter; and
In addition to the examination referred to in their report(s) included or
incorporated by reference in the Final Prospectus as amended or supplemented and
the limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (ii) and (iii) above, they have carried out
certain procedures as specified in their letter, not constituting an audit in
accordance with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the Representatives,
which are derived from the general accounting records of the Company and its
subsidiaries, which appear or are incorporated by reference in the Final
Prospectus as amended or supplemented or in Part II of, or in exhibits and
schedules to, the Registration Statement specified by the Representatives, and
have compared certain of such specified amounts, percentages and financial
information with the accounting records of the Company and its subsidiaries and
have found them to be in agreement.
IV-3
