EXHIBIT 1.01
THE HARTFORD FINANCIAL SERVICES GROUP, INC.
COMMON STOCK
($0.01 PAR VALUE PER SHARE)
UNDERWRITING AGREEMENT
GENERAL TERMS AND CONDITIONS
_______,____, ____
To the Underwriter named in
Schedule I to the applicable Pricing Agreement.
Ladies and Gentlemen:
From time to time The Hartford Financial Services Group, Inc., a Delaware
corporation (the "Company"), proposes to enter into one or more Pricing
Agreements in the form of Annex I hereto which incorporates by reference these
Underwriting Agreement General Terms and Conditions (each, a "Pricing
Agreement"), with such additions and deletions as the parties thereto may
determine, and, subject to the terms and conditions stated herein and therein,
to issue and sell to the firms named in Schedule I to the applicable Pricing
Agreement (such firms constituting the "Underwriters" with respect to such
Pricing Agreement and the securities specified therein) certain shares of its
Common Stock, $0.01 par value per share (the "Shares") specified in Schedule II
to such Pricing Agreement (with respect to such Pricing Agreement, the
"Designated Shares").
The terms and rights of any particular issuance of Designated Shares shall
be as specified in the Pricing Agreement relating thereto.
1. Particular sales of Designated Shares may be made from time to time to
the Underwriters of such Shares, for whom the firms designated as
representatives of the Underwriters of such Shares in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to an Underwriter who act without any firm being designated
as its or their representatives. The Underwriting Agreement shall not be
construed as an obligation of the Company to sell any of the Shares or as an
obligation of the Underwriters to purchase any of the shares. The obligation of
the Company to issue and sell any of the Shares and the obligation of any of the
Underwriters to purchase any of the Shares shall be evidenced by the Pricing
Agreement with respect to the Designated Shares specified therein. Each Pricing
Agreement shall specify the aggregate number of the Designated Shares, the
initial public
offering price of such Designated Shares or the manner of determining such
price, the purchase price to the Underwriters of such Designated Shares, the
names of the Underwriters of such Designated Shares, the names of the
Representatives of such Underwriters, the number of such Designated Shares to be
purchased by each Underwriter and the commission, if any, payable to the
Underwriters with respect thereto and shall set forth the date, time and manner
of delivery of such Designated Shares, and payment therefor. A Pricing Agreement
shall be in the form of an executed writing (which may be in counterparts), and
may be evidenced by an exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of communications
transmitted. The obligations of the Underwriters under any Pricing Agreement
shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (File No. --) in respect
of the Shares has been filed with the Securities and Exchange Commission
(the "Commission"); such registration statement and any post-effective
amendment thereto, each in the form heretofore delivered or to be
delivered to the Representatives and, excluding exhibits to such
registration statement, but including all documents incorporated by
reference in the prospectus contained in the latest registration
statement, to the Representatives for each of the other Underwriters, have
been declared effective by the Commission in such form; no other document
with respect to such registration statement or document incorporated by
reference therein has heretofore been filed or transmitted for filing with
the Commission (other than prospectuses filed pursuant to Rule 424(b) of
the rules and regulations of the Commission under the Securities Act of
1933, as amended (the "Act"), each in the form heretofore delivered to the
Representatives); and no stop order suspending the effectiveness of such
registration statement has been issued and no proceeding for that purpose
has been initiated or threatened by the Commission (any preliminary
prospectus included in such registration statement or filed with the
Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the Act is hereinafter called a "Preliminary
Prospectus"); the various parts of such registration statement, including
all exhibits thereto and the documents incorporated by reference in the
prospectus contained in the latest registration statement at the time such
part of the registration statements became effective, each as amended at
the time such part of the registration statement became effective, are
hereinafter collectively called the "Registration Statement"; the final
prospectus relating to the Shares, in the form in which it has most
recently been filed, or transmitted for filing, with the Commission on or
prior to the date of this Agreement, being hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include
2
the documents incorporated by reference therein pursuant to the applicable
form under the Act, as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include any documents filed after the date of such
Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of the
Company filed pursuant to Sections 13(a) or 15(d) of the Exchange Act
after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and any reference
to the Prospectus shall be deemed to refer to the Prospectus in relation
to the applicable Designated Securities in the form in which it is filed
with the Commission pursuant to Rule 424(b) under the Act in accordance
with Section 5(a) hereof, including any documents incorporated by
reference therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and
in conformity with information furnished in writing to the Company by an
Underwriter of Designated Shares through the Representatives expressly for
use in the Prospectus as amended or supplemented relating to such Shares;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date and any applicable Time of
3
Delivery as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Company by an Underwriter of Designated Shares through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to
such Shares;
(d) Except as described in or contemplated by the Registration
Statement and the Prospectus, there has not been any material adverse
change in, or any adverse development which materially affects, the
business, properties, financial condition or results of operations of the
Company and its subsidiaries taken as a whole from the dates as of which
information is given in the Registration Statement and the Prospectus;
and, since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any change
in the consolidated capital stock (other than issuances of capital stock
upon the exercise of options and stock appreciation rights, upon earn outs
of performance shares and upon conversions of convertible securities, in
each case which were outstanding on the date of the latest balance sheet
included or incorporated by reference in the Prospectus) or 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 stockholders' equity or
results of operations of the Company and its subsidiaries taken as a
whole, otherwise than as set forth or contemplated in the Prospectus;
(e) The Company and each subsidiary of the Company which meets the
definition of a significant subsidiary as defined in Regulation S-X
(collectively referred to herein as the "Significant Subsidiaries" and
individually as a "Significant Subsidiary") has been duly incorporated and
is validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, with full corporate power and
authority to own its properties and conduct its business;
(f) 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;
(g) The Shares have been duly and validly authorized, and, when the
Designated Shares are issued and delivered pursuant to the Pricing
Agreement with respect to such Designated Shares, such Designated Shares
will be duly and validly issued and fully paid and non-assessable; the
Shares conform to the
4
description thereof contained in the Registration Statement and the
Designated Shares will conform to the description thereof contained in the
Prospectus as amended or supplemented with respect to such Designated
Shares.
(h) The issue and sale of the Shares and the compliance by the
Company with all the provisions of the Pricing Agreement with respect to
the Designated Shares and the consummation of the transactions therein
contemplated have not conflicted with or resulted in a breach or violation
of any of the terms or provisions of, or constituted a default under, and
will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
to which the Company is a party or by which the Company is bound or to
which any of the property or assets of the Company is subject, except for
such breaches, conflicts, violations or defaults which would not have,
individually or in the aggregate with such other breaches, conflicts,
violations and defaults, a material adverse effect on the financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries, considered as a whole, and which will not affect the
validity, performance or consummation of the transactions contemplated by
the Pricing Agreement with respect to the Designated Shares, and have not
resulted and will not result in any violation of the provisions of the
Amended and Restated Certificate of Incorporation, as amended (the
"Amended and Restated Certificate of Incorporation"), or Amended and
Restated By-laws of the Company or any statute, rule or regulation, or 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
properties; and no consent, approval, authorization, license, order,
registration or qualification of or with any such court, regulatory
authority or other governmental agency or body is required for the issue
and sale of the Shares or the consummation by the Company of the
transactions contemplated by the Pricing Agreement with respect to the
Designated Shares, except those which have been, or will have been prior
to the Time of Delivery, obtained under the Act and 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 consents, approvals, authorizations,
licenses, orders, registrations or qualifications which the failure to
make, obtain or comply with would not have, individually or in the
aggregate with such other failures, a material adverse effect on the
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries, considered as a whole, and which will not
affect the validity, performance or consummation of the transactions
contemplated by the Pricing Agreement with respect to the Designated
Shares;
5
(i) Except as described in the Prospectus, there is no action, suit
or proceeding pending, nor to the knowledge of the Company, is there any
action, suit or proceeding threatened, which might reasonably be expected
to result in a material adverse change in the financial condition, results
of operations or business of the Company and its subsidiaries considered
as a whole or which is required to be disclosed in the Registration
Statement;
(j) The Pricing Agreement with respect to the Designated Shares has
been duly authorized executed and delivered by the Company; and
(k) 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.
3. Upon the execution of the Pricing Agreement applicable to the
Designated Shares and authorization by the Representatives of the release of the
Designated Shares, the several Underwriters propose to offer the Designated
Shares for sale upon the terms and conditions set forth in the Prospectus as
amended or supplemented.
4. Certificates for the Designated Shares to be purchased by each
Underwriter pursuant to the Pricing Agreement relating thereto, in the form
specified in such Pricing Agreement, and in such authorized denominations and
registered in such names as the Representatives may request upon at least
forty-eight hours' prior notice to the Company, shall be delivered by or on
behalf of the Company to the Representatives for the account of such
Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor by wire transfer of Federal (same-day) funds to the
account specified by the Company to the Representatives at least forty-eight
hours in advance as specified in such Pricing Agreement, with respect to the
Designated Shares, all in the manner and at the place and time and date
specified in such Pricing Agreement or at such other place and time and date as
the Representatives and the Company may agree upon in writing, such time and
date being herein called the "First Time of Delivery". Such time and date for
delivery is herein called a "Time of Delivery". For purposes of this Agreement,
New York Business Day shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York are
generally authorized or obligated by law or executive order to close.
5. The Company agrees with each of the Underwriters of the Designated
Shares:
(a) To prepare the Prospectus as amended or supplemented in
relation to the applicable Designated Shares in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the
6
execution and delivery of the Pricing Agreement relating to the applicable
Designated Shares, or, if applicable, such earlier time as may be required
by Rule 424(b); to make no further amendment or any supplement to the
Registration Statement or Prospectus as amended or supplemented after the
date of the Pricing Agreement relating to such Shares and prior to the
Time of Delivery for such Shares which shall be disapproved by the
Representatives for such Shares promptly after reasonable notice thereof;
to advise the Representatives promptly of any such amendment or supplement
after such Time of Delivery and furnish the Representatives with copies
thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act for so long as the delivery of a prospectus is required in connection
with the offering or sale of such Shares, and during such same period to
advise the Representatives, promptly after it receives notice thereof, of
the time when any amendment to the Registration Statement has been filed
or becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or suspending the
use of any prospectus relating to the Shares, of the suspension of the
qualification of such Securities for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such purpose,
or of any request by the Commission for the amending or supplementing of
the Registration Statement or Prospectus or for additional information;
and, in the event of the issuance of any such stop order or of any such
order preventing or suspending the use of any prospectus relating to the
Shares or suspending any such qualification, to promptly use its best
efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Shares for offering
and sale under the 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 such 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;
(c) Prior to 12:00 p.m., New York City time, on the New York
Business Day next succeeding the date of the Pricing Agreement applicable
to the Designated Shares and from time to time, to furnish the
Underwriters with copies of the Prospectus as amended or supplemented in
such quantities as the Representatives may from time to time reasonably
request, and, if the delivery of a prospectus is required at any time in
connection with the offering or sale of the Shares and if at such time any
event shall have occurred as a result of which the
7
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary during such
period to amend or supplement the Prospectus or to file under the Exchange
Act any document incorporated by reference in the Prospectus in order to
comply with the Act or the Exchange Act, to notify the Representatives and
upon their request to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in securities as many
copies as the Representatives may from time to time reasonably request of
an amended Prospectus or a supplement to the Prospectus which will correct
such statement or omission or effect such compliance;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and
the rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158); and
(e) During the period beginning from the date of the Pricing
Agreement for the Designated Shares and continuing to and including the
date -- days after the date of the Prospectus Supplement, not to offer,
sell, contract to sell or otherwise dispose of, except as provided
hereunder, any securities of the Company which are substantially similar
to the Designated Shares, including but not limited to any securities that
are convertible into or exchangeable for, or that represent the right to
receive, shares of the Company's Common Stock (other than issuances of
capital stock upon the exercise of options and stock appreciation rights,
upon earn outs of performance shares and upon conversions of convertible
securities, in each case which were outstanding on the date of the latest
balance sheet included or incorporated by reference in the Prospectus) or
any such substantially similar securities without the prior written
consent of the Representatives.
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, any Pricing Agreement, any Blue Sky Memorandum,
8
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 as provided in Section 5(b) hereof, including
the fees and disbursements of counsel for the Underwriters in connection with
such qualification and in connection with the Blue Sky survey(s); (iv) the cost
of preparing certificates for the Shares; (v) the cost and charges of any
transfer agent or registrar or dividend disbursing agent; and (vi) all other
costs and expenses incident to the performance of its obligations hereunder
which are not otherwise specifically provided for in this Section. It is
understood, however, that, except as provided in this Section, and Sections 8
and 11 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of the
Shares by them, and any advertising expenses connected with any offers they may
make.
7. The obligations of the Underwriters of any Designated Shares under the
Pricing Agreement applicable to such Designated Shares shall be subject, in the
discretion of the Representatives, to the condition that all representations and
warranties and other statements of the Company in or incorporated by reference
in the Pricing Agreement relating to such Designated Shares are, at and as of
the Time of Delivery for such Designated Shares, true and correct, the condition
that the Company shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Shares shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; no stop order suspending the effectiveness of
the Registration Statement or any part thereof shall have been issued and
no proceeding for that purpose shall have been initiated or threatened by
the Commission; and all requests for additional information on the part of
the Commission shall have been complied with to the Representatives'
reasonable satisfaction;
(b) --, counsel for the Underwriters, shall have furnished to
the Representatives such opinion or opinions, dated the Time of Delivery
for such Designated Shares, with respect to the Pricing Agreement
applicable to the Designated Shares, the validity of the Designated Shares
being delivered at such Time of Delivery, the Registration Statement, the
Prospectus and such other related matters as the Representatives may
reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon
such matters;
9
(c) Debevoise & Xxxxxxxx, counsel for the Company, shall have
furnished to the Company (with a statement authorizing you to rely
thereon) their written opinion dated the Time of Delivery for such
Designated Shares, in form and substance satisfactory to you, to the
effect that the Designated Shares being delivered at the Time of Delivery
have been duly and validly authorized and issued and are fully paid and
non-assessable.
(d) Xxxx X. Xxxxx, Executive Vice President and General Counsel of
the Company, shall have furnished to you his written opinion, dated the
Time of Delivery for such Designated Shares, in form and substance
satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority
(corporate or other) to own its properties and conduct its business
as described in the Prospectus as amended or supplemented;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus as amended or supplemented and all of the issued
shares of capital stock of the Company (including the Designated
Shares being delivered at such Time of Delivery) have been duly and
validly authorized and issued and are fully paid and non-assessable;
and the Designated Shares conform to the description thereof in the
Prospectus as amended or supplemented;
(iii) Except as described in the Prospectus, as amended or
supplemented on or prior to the date of the Pricing Agreement
relating to the Designated Shares, there is no action, suit or
proceeding pending, nor to such counsel's best knowledge is there
any action, suit or proceeding threatened, which might reasonably be
expected to result in a material adverse change in the financial
condition, results of operations or business of the Company and its
subsidiaries, considered as a whole, or which is required to be
disclosed in the Registration Statement;
(iv) The Pricing Agreement with respect to the Designated
Shares has been duly authorized, executed and delivered by the
Company;
(v) The issue and sale of the Designated Shares and the
compliance by the Company with the Pricing Agreement with respect to
the Designated Shares and the consummation of the transactions
herein and therein contemplated will not conflict with or result in
a breach or violation of any of the terms or provisions of, or
constitute a default under
10
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Company
is a party or by which the Company is bound or to which any of the
property or assets of the Company is subject, nor will such actions
result in any violation of the provisions of the Amended and
Restated Certificate of Incorporation or Amended and Restated
By-Laws of the Company or any statute or any order, rule or
regulation known to such counsel of any court or governmental agency
or body having jurisdiction over the Company or any of its
properties;
(vi) No consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency or
body is required for the issue or sale of the Designated Shares or
the consummation by the Company of the transactions contemplated by
The Pricing Agreement, except such as have been obtained under the
Act and any such consent, approval, authorization, order,
registration or qualification as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Designated Shares by the Underwriters;
(vii) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the financial
statements and related schedules and other financial data therein,
as to which such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may be,
complied as to form in all material respects with the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder; and based upon specified
participation of such counsel in connection with the preparation of
the Registration Statement, such counsel has no reason to believe
that any of such documents, when they became effective or were so
filed, as the case may be, contained, in the case of a registration
statement which became effective under the Act, an untrue statement
of a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, and in the case of other documents which were filed
under the Act or the Exchange Act with the Commission, an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein in the light of
the circumstances under which they were made when such documents
were so filed, not misleading; it being understood that such counsel
need express no opinion as to the financial statements or other
financial data included in any of the documents mentioned in this
clause and that such counsel may state that he has not independently
verified factual statements in any such document; and
11
(viii) The Registration Statement and the Prospectus as
amended or supplemented and any further amendments and supplements
thereto made by the Company on or prior to the date of the Pricing
Agreement relating to the Designated Shares (other than the
financial statements and related schedules and other financial data
therein, as to which such counsel need express no opinion), comply
as to form in all material respects with the requirements of the Act
and the rules and regulations thereunder; and based upon specified
participation of such counsel in connection with the preparation of
the Registration Statement and the Prospectus, such counsel has no
reason to believe that, as of its effective date, the Registration
Statement or any further amendment thereto on or prior to the date
of the Pricing Agreement relating to the Designated Shares (other
than the financial statements and related schedules and other
financial data therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that, as of its
date, the Prospectus as amended or supplemented or any further
amendment or supplement thereto made by the Company on or prior to
the date of the Pricing Agreement relating to the Designated Shares
(other than the financial statements and related schedules and other
financial data therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading or that, as of the Time of Delivery, either the
Registration Statement or the Prospectus as amended or supplemented
or any further amendment or supplement thereto made by the Company
on or prior to the date of the Pricing Agreement relating to the
Designated Shares (other than the financial statements and related
schedules and other financial data therein, as to which such counsel
need express no opinion) contains an untrue statement of a material
fact or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances in which
they were made, not misleading; and such counsel does not know of
any amendment to the Registration Statement required to be filed or
any contracts or other documents of a character required to be filed
as an exhibit to the Registration Statement or required to be
incorporated by reference into the Prospectus as amended or
supplemented or required to be described in the Registration
Statement or the Prospectus as amended or supplemented which are not
filed or incorporated by reference or described as required; it
being understood that such counsel may state that he has not
independently verified factual statements in the Prospectus (or any
such amendment or supplement);
12
In rendering such opinion, such counsel may state that he expresses
no opinion as to the laws of any jurisdiction outside the United States
and in respect of matters of fact such counsel may rely upon certificates
of officers of the Company and its subsidiaries; provided that such
counsel shall state he believes that both you and he are justified in
relying upon such opinions and certificates and copies of such opinions
and certificates are made available to you;
(e) On the date of the Pricing Agreement for the Designated Shares
at a time prior to the execution of the Pricing Agreement with respect to
such Designated Shares and at each Time of Delivery for such Designated
Shares, --, the independent accountants of the Company who have certified
the financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement, shall have
furnished to the Representatives a letter, dated the date of the Pricing
Agreement and a letter dated such Time of Delivery, respectively, as to
such matters ordinarily included in accountants' "comfort letters" to
underwriters as the Representatives may reasonably request and in form and
substance satisfactory to the Representatives;
(f) (i) Except as described in or contemplated by the Registration
Statement and the Prospectus, as amended or supplemented on or prior to
the date of the Pricing Agreement relating to the Designated Shares, there
has not been any material adverse change in, or any adverse development
which materially affects, the business, properties, financial condition or
results of operations of the Company and its subsidiaries, considered as a
whole, from the dates as of which information is given in the Registration
Statement and the Prospectus as amended or supplemented on or prior to the
date of the Pricing Agreement relating to the Designated Shares; and (ii)
except as contemplated in the Prospectus, as amended or supplemented on or
prior to the date of the Pricing Agreement relating to the Designated
Shares, since the respective dates as of which information is given in the
Prospectus as amended or supplemented on or prior to the date of the
Pricing Agreement relating to the Designated Shares there shall not have
been any change in the capital stock (other than issuances of capital
stock upon exercise of options and stock appreciation rights, upon earn
outs of performance shares and upon conversions of convertible securities,
in each case which were outstanding on the date of the latest balance
sheet included or incorporated by reference in the prospectus) or
long-term debt of the Company or any of its subsidiaries or any change, or
any development involving a prospective change, in or affecting the
business affairs, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries considered as a
whole, otherwise than as set forth or contemplated in the Prospectus as
amended on or prior to the date of the Pricing Agreement relating to the
Designated Shares, the effect of which, in any such case described in
clause (i) or (ii), is in the reasonable judgment of the Representatives
so material and adverse as to make it
13
impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Shares on the terms and in the manner
contemplated in the Prospectus as first amended or supplemented relating
to the Designated Shares;
(g) On or after the date of the Pricing Agreement relating to the
Designated Shares (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities by any "nationally recognized
statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act and (ii) no such
organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of any of the
Company's debt securities 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 Designated Shares on the terms and in the
manner contemplated in the Prospectus, as amended or supplemented relating
to the Designated Shares;
(h) On or after the date of the Pricing Agreement relating to the
Designated Shares there shall not have occurred any of the following: (i)
a suspension or material limitation in trading in securities generally on
the New York Stock Exchange (the "Exchange"); (ii) a material suspension
or limitation in trading in the Company's securities on the Exchange;
(iii) a general moratorium on commercial banking activities declared by
either Federal or New York State authorities; or (iv) a material adverse
change in the financial markets, the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war or other calamity or crisis; if the effect of
any such event specified in this clause (iv) in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Designated Shares on the terms and
in the manner contemplated in the Prospectus as amended or supplemented
relating to the Designated Shares;
(i) The Shares being delivered at each Time of Delivery shall have
been duly listed, subject to notice of issuance, on the Exchange; and
(j) The Company shall have furnished or caused to be furnished to
the Representatives at each Time of Delivery for the Designated Shares a
certificate or certificates of officers of the Company satisfactory to the
Representatives as to the accuracy of the representations and warranties
of the Company herein at and as of such Time of Delivery, as to the
performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set
forth in subsections (a) and (f) of this Section and as to such other
matters as the Representatives may reasonably request.
14
8. (a) The Company will indemnify and hold harmless each Underwriter, its
partners, directors and officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Act, against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Prospectus, or any amendments or
supplement thereto, or any related preliminary prospectus or preliminary
prospectus supplement, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such losses,
claims, damages, liabilities or action as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives, if any, specifically for use therein, it being understood and
agreed that the only such information furnished by any Underwriter consists of
the information described as such in Schedule II.
(b) Each Underwriter of Designated Shares will severally and not
jointly indemnify and hold harmless the Company, its directors and
officers and each person, if any, who controls the Company within the
meaning of Section 15 of the Act, against any losses, claims, damages or
liabilities to which the Company may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Prospectus or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to
the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon
and in conformity with written information furnished to the Company by
such Underwriter through the Representatives, if any, specifically for use
therein, and will reimburse any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are
incurred, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such
in Schedule II.
15
(c) Promptly after receipt by an indemnified party under this
section of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above, notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under
subsection (a) or (b) above. In the case of parties indemnified pursuant
to Section 8(a) above, counsel to the indemnified parties shall be
selected by the Representatives, and, in the case of parties indemnified
pursuant to Section 8(b) above, counsel to the indemnified parties shall
be selected by the Guarantor. An indemnifying party may participate at its
own expense in the defense of any such action; provided, however, that
counsel to the indemnifying party shall not (except with the consent of
the indemnified party) also be counsel to the indemnified party. In no
event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate from
their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution
could be sought under this Section 8 (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement
as to or an admission of fault, culpability or a failure to act by or on
behalf of any indemnified party.
(d) If the indemnification provided for in this Section is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or
(b) above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on
the other from the offering of the Designated Shares or (ii) If the
allocation provided by clause (i) is not permitted by applicable law, in
such proportions as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and the Underwriters on the other in
connection with the statements of omissions which resulted in such losses,
claims, damages or liabilities as well as any relevant equitable
considerations. The relative benefits received by the Company on one hand
and the Underwriters on the other hand shall be deemed to
16
be in the same proportions as the total net proceeds from the offering
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or such Underwriters
on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed
to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Designated Shares
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters of
Designated Shares in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director
of the Underwriters and to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each director of the Company, to
each officer of the Company who signed the Registration Statement and to
each person, if any, who controls the Company within the meaning of the
Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Designated Shares which it has agreed to purchase under the Pricing Agreement
relating to such Shares, the Representatives may in their discretion arrange for
themselves or
17
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 the Representatives do not arrange for the purchase of such
Designated Shares, as the case may be, 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 the Representatives to
purchase such Shares on such terms. In the event that, within the
respective prescribed period, the Representatives notify the Company that
they have so arranged for the purchase of such Shares, or the Company
notifies the Representatives that it has so arranged for the purchase of
such Shares, the Representatives or the Company shall have the right to
postpone a Time of Delivery for such Shares for a period of not more than
seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments or supplements to the Registration
Statement or the Prospectus which in the opinion of the Representatives
may thereby be made necessary. The term "Underwriter" as used in the
Pricing Agreement shall include any person substituted under this Section
with like effect as if such person had originally been a party to the
Pricing Agreement with respect to such Designated Shares.
(b) If, after giving effect to any arrangements for the
purchase of the Designated Shares of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate number of such Shares which remains
unpurchased does not exceed one-eleventh of the aggregate number of the
Designated Shares to be purchased at the respective Time of Delivery,
then the Company shall have the right to require each non-defaulting
Underwriter to purchase the number of Designated Shares which such
Underwriter agreed to purchase under the Pricing Agreement relating to
such Designated Shares and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the number of
Designated Shares which such Underwriter agreed to purchase under such
Pricing Agreement) of the Designated Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Designated Shares of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate number of Designated Shares which
remains unpurchased exceeds one-eleventh of the aggregate number of the
Designated Shares as referred to in subsection (b) above, or if the
Company shall not exercise the right described in subsection (b) above
to require non-defaulting Underwriters to purchase Designated Shares of
a defaulting Underwriter or Underwriters, then the Pricing Agreement
relating to such Designated Shares shall thereupon terminate, without
18
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 and the several Underwriters, as set forth
or incorporated by reference in the Pricing Agreement with respect to the
Designated Shares or made by or on behalf of them, respectively, pursuant to
such Pricing Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Shares.
11. If any Pricing Agreement shall be terminated pursuant to Section 7(b)
or Section 9 hereof, the Company shall not then be under any liability to any
Underwriter with respect to the Designated Shares with respect to which such
Pricing Agreement except as provided in Sections 6 and 8 hereof; but, if for any
other reason Designated Shares are not delivered by or on behalf of the Company
as provided herein (other than in respect of a breach of the Pricing Agreement
by any Underwriter of Designated Shares covered by such Pricing Agreement), the
Company will reimburse the Underwriters through the Representatives for all
out-of-pocket expenses approved in writing by the Representatives, including
fees and disbursements of counsel, reasonably incurred by the Underwriters in
making preparations for the purchase, sale and delivery of such Designated
Shares, but the Company shall then be under no further liability to any
Underwriter with respect to such Designated Shares except as provided in
Sections 6 and 8 hereof.
12. In all dealings under the Pricing Agreement applicable to the
Designated Shares, the Representatives of the Underwriters of the Designated
Securities shall act on behalf of each of such Underwriters, and the parties
thereto shall be entitled to act and rely upon any statement, request, notice or
agreement on behalf of any such Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in such Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement with respect to the Designated Shares; and if to the Company
shall be delivered or sent by mail, telex or facsimile transmission to the
address of the Company set forth in the Registration Statement: Attention:
General Counsel; provided, however, that any notice to an Underwriter pursuant
to Section 8(c) hereof shall be delivered or sent by mail, telex
19
or facsimile transmission to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by the Representatives upon request. Any
such statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement and each Pricing Agreement with respect to the
Designated Shares shall be binding upon, and inure solely to the benefit of, the
Underwriters and the Company and, to the extent provided in Sections 8 and 10
hereof, the officers and directors of the Company and each person who controls
the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of such Pricing Agreement. No purchaser of any
of the Shares from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day other than a Saturday or Sunday or a
day on which banks in the City of New York are authorized or required to close.
15. These Underwriting Agreement General Terms and Conditions and each
Pricing Agreement shall be governed by and construed in accordance with the laws
of the State of New York.
16. The Agreement and each Pricing Agreement may be executed by any one or
more of the parties thereto in any number of counterparts, each of which shall
be deemed to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
20
If the foregoing is in accordance with your understanding, please sign and
return to us four counterparts hereof.
Very truly yours,
THE HARTFORD FINANCIAL SERVICES GROUP, INC.
By:________________________________________
Name:
Title:
Accepted as of the date hereof:
[Underwriter]
By:________________________________________
Name:
Title:
ANNEX I
PRICING AGREEMENT
To the Underwriter named in
Schedule I hereto ______,_____,_____
Ladies and Gentlemen:
The Hartford Financial Services Group, Inc., a Delaware corporation (the
"Company", proposes, subject to the terms and conditions stated herein and in
the Underwriting Agreement General Terms and Conditions, dated ______, __, ____,
attached hereto, to issue and sell to the Underwriter named in Schedule I hereto
(the "Underwriter") the Shares specified in Schedule II hereto (the "Designated
Shares"). Each of the provisions of the Underwriting Agreement General Terms and
Conditions is incorporated herein by reference in its entirety, and shall be
deemed to be a part of this Agreement to the same extent as if such provisions
had been set forth in full herein; and each of the representations and
warranties set forth therein shall be deemed to have been made at and as of the
date of this Pricing Agreement. Each reference to the Representatives herein and
in the provisions of the Underwriting Agreement General Terms and Conditions so
incorporated by reference shall be deemed to refer to you. Unless otherwise
defined herein, terms defined in the Underwriting Agreement General Terms and
Conditions are used herein as therein defined. The addresses of the
Representatives referred to in Section 12 of the Underwriting Agreement General
Terms and Conditions are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Shares, in the form
heretofore delivered to you is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement General Terms and Conditions incorporated herein by
reference, the Company agrees to issue and sell to the Underwriter, and the
Underwriter agrees to purchase from the Company, at the time and place and at
the purchase price to the Underwriter set forth in Schedule II hereto, the
number of Designated Shares set forth opposite the name of such Underwriter in
Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us four counterparts hereof, and upon acceptance hereof by you, on
behalf of the Underwriter, this letter and such acceptance hereof, including the
provisions of the
I-1
Underwriting Agreement General Terms and Conditions incorporated herein by
reference, shall constitute a binding agreement between the Underwriter, on the
one hand, and the Company, on the other.
Very truly yours,
THE HARTFORD FINANCIAL SERVICES GROUP, INC.
By:________________________________
Name:
Title:
Accepted as of the date hereof:
[Underwriter]
By:________________________________
Name:
Title:
I-2
SCHEDULE I
NUMBER OF
DESIGNATED
SHARES TO
BE
UNDERWRITER PURCHASED
----------- ---------
--...................................
Total.................................
I-3
SCHEDULE II
TITLE OF DESIGNATED SHARES:
NUMBER OF DESIGNATED SHARES:
INITIAL OFFERING PRICE BY UNDERWRITER:
PURCHASE PRICE BY UNDERWRITER:
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
TIME OF DELIVERY:
CLOSING LOCATION:
NAMES AND ADDRESSES OF REPRESENTATIVES:
INFORMATION PROVIDED BY THE UNDERWRITER:
I-4
