EXECUTION COPY
THE ALLSTATE CORPORATION
$250,000,000 6.125% Senior Notes Due 2032
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UNDERWRITING AGREEMENT
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New York, New York
December 12, 2002
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
c/o Banc One Capital Markets, Inc.
0 Xxxx Xxx Xxxxx
Xxxxxxx, XX 00000
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, $250,000,000 principal amount of its 6.125% Senior Notes Due
2032 registered under the Registration Statement referred to in Section 1(a)
below (the "Securities"), to be issued pursuant to the provisions of an
Indenture, dated as of December 16, 1997, as amended by the Third Supplemental
Indenture, dated as of July 23, 1999, and the Sixth Supplemental Indenture,
dated as of June 12, 2000, and as supplemented by the Ninth Supplemental
Indenture, to be dated as of December 17, 2002 (as so amended and supplemented,
the "Indenture"), between the Company and State Street Bank and Trust Company,
as Trustee (the "Trustee").
1. Representations and Warranties. The Company represents and warrants
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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. 333-39640) 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 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-1") 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 or will comply 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.
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(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
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
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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 Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company, enforceable in accordance with its
terms except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii) rights
of acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(l) The Securities have been duly authorized and, when the Securities
are issued and delivered pursuant to this Agreement, such Securities will have
been duly executed, authenticated, issued and delivered and will constitute
valid and legally binding obligations of the Company entitled to the benefits
provided by the Indenture.
(m) The issuance and sale of the Securities and compliance by the
Company with all of the provisions of the Securities, the Indenture 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
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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 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.
(n) 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.
(o) 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.
(p) 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, 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
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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 of the Securities set forth in Schedule II hereto
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opposite their names at 98.785% of the principal amount -- the purchase price --
plus accrued interest, if any, from December 17, 2002 to the date of payment and
delivery.
3. Payment and Delivery of the Securities. Delivery of and payment for
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the Securities shall be made at 10:00 AM, New York City time, on December 17,
2002, 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
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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
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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 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
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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; and
(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.
(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
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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 Blue Sky Survey and
any Legal Investment Memoranda in connection with the offering, purchase, sale
and delivery of the Securities; (iii) all reasonable
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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, Paying Agent or Transfer
Agent and the fees and disbursements of counsel for any such Trustee, Paying
Agent or Transfer Agent in connection with the Indenture and the Securities; 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
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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, 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;
(b) LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P., 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) have been duly
executed, issued and delivered and constitute valid and legally
binding obligations of the Company entitled to the benefits
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provided by the Indenture, and the Securities and the Indenture
conform in all material respects to the descriptions thereof in the
Final Prospectus as amended or supplemented;
(iv) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the Company, 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;
(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) 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 shall not be
required to have made an independent check or verification thereof
(except as described in paragraph (iii) 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-1, 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-1,
as to which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact
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necessary to make the statements therein, in light of the
circumstances under which they were made not misleading; and
(vii) 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.
(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 other 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
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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 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
performance by the Company of its obligations under the Indenture, the
Securities 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
11
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 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
12
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 Indenture is required for the
issue and sale of the Securities or the consummation by the Company of
the transactions contemplated by this Agreement, 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 Debt Warrants," "Description of Preferred Stock,"
"Description of Preferred Securities," "Description of Preferred
Securities Guarantees" and "Plan of Distribution" in the Basic
Prospectus and under the captions "Description of the Notes" and
"Underwriting" 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 Debt Warrants,"
"Description of Preferred Stock," "Description of Preferred
Securities," "Description of Preferred Securities Guarantees" and
"Plan of Distribution" in the Basic Prospectus and under the captions
"Description of the Notes" and "Underwriting" 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
13
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 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 Debt Warrants," "Description of
Preferred Stock," "Description of Preferred Securities," "Description
of Preferred Securities Guarantees" and "Plan of Distribution" in the
Basic Prospectus and under the captions "Description of the Notes" and
"Underwriting" 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 Debt Warrants,"
"Description of Preferred Stock," "Description of Preferred
Securities," "Description of Preferred Securities Guarantees" and
"Plan of Distribution" in the Basic Prospectus and under the captions
"Description of the Notes" and "Underwriting" 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 or excluded therefrom, as to which such
counsel need express no opinion), when they
14
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 Xxxxxxx Xxxx &
Xxxxxxxxx, 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, Deloitte & Touche 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, Deloitte & Touche 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.
15
(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
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.
The documents required to be delivered by this Section 7 shall be
delivered at the office of Xxxxxxx Xxxx & Xxxxxxxxx, counsel to the
Underwriters, at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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 Banc One Capital Markets, Inc. 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
16
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by 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, to the same extent as
the foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter specifically for inclusion in the
documents referred to in the foregoing indemnity. 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 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
17
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 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
18
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 Securities
which the defaulting Underwriter or Underwriters agreed but failed to purchase
shall exceed 10% of the aggregate amount of 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 in the
-----------
absolute discretion of the Representatives, by notice given to the Company 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
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 sole 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).
19
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 will be in writing and
-------
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to Banc One Capital Markets, Inc., 0 Xxxx Xxx Xxxxx,
Xxxxxxx, XX 00000, Attention: Attn: Syndicate Desk, 7th Floor (fax no.
000-000-0000), with a copy to the General Counsel, Banc One Capital Markets,
Inc., 0 Xxxx Xxx Xxxxx, Xxxxxxx, XX 00000, Attention: General Counsel (fax no.
000-000-0000); 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 will have any right or obligation
hereunder.
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 AND EACH PRICING 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.
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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: /s/ Xxxxx X. Xxxx
----------------------------------
Name: Xxxxx X. Xxxx
Title: Treasurer
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
BANC ONE CAPITAL MARKETS, INC.
UBS WARBURG LLC
BANC OF AMERICA SECURITIES LLC
XXXXXXX, XXXXX & CO.
X.X. XXXXXX SECURITIES INC.
XXXXXX BROTHERS INC.
XXXXXX XXXXXXX & CO. INCORPORATED
By: Banc One Capital Markets, Inc.
By: /s/ Xxxxxx Xxxxxxxxxx
-------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Director
For themselves and the other
Underwriters named in Schedule II
to the foregoing Agreement
21
SCHEDULE I
Representatives
---------------
Banc One Capital Markets, Inc.
UBS Warburg LLC
SCHEDULE II
Underwriters Principal Amount of
------------ Securities to be Purchased
--------------------------
Banc One Capital Markets, Inc.......................................... $ 100,000,000
UBS Warburg LLC........................................................ $ 50,000,000
Banc of America Securities LLC......................................... $ 20,000,000
Xxxxxxx, Sachs & Co. .................................................. $ 20,000,000
X.X. Xxxxxx Securities Inc. ........................................... $ 20,000,000
Xxxxxx Brothers Inc. .................................................. $ 20,000,000
Xxxxxx Xxxxxxx & Co. Incorporated...................................... $ 20,000,000
----------
Total...................... $250,000,000
===========
SCHEDULE III
Principal Subsidiaries Jurisdiction Of Incorporation
Allstate Insurance Company Illinois
Allstate Life Insurance Company Illinois
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;
(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 period of the
2
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
(iv) 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.
3
