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EXHIBIT 1(c)
LINCOLN NATIONAL CAPITAL III
LINCOLN NATIONAL CAPITAL IV
LINCOLN NATIONAL CAPITAL V
LINCOLN NATIONAL CAPITAL VI
Preferred Securities
(liquidation amount $25 per preferred security)
guaranteed to the extent set forth in the Guarantee by
LINCOLN NATIONAL CORPORATION
Underwriting Agreement Basic Provisions
_______________, 1998
From time to time, Lincoln National Capital III, Lincoln National
Capital IV, Lincoln National Capital V or Lincoln National Capital VI, each a
statutory business trust formed under the laws of the State of Delaware (each a
"Trust" and collectively, the "Trusts"), and Lincoln National Corporation, an
Indiana corporation (the "Guarantor"), as depositor of each Trust and as
Guarantor, propose to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, which shall provide that the Trust
identified in the applicable Pricing Agreement (such Trust being the
"Designated Trust" with respect to such Pricing Agreement) shall issue and sell
to the firms (such firms constituting the "Underwriters" with respect to such
Pricing Agreement and the securities specified therein) certain of its
preferred securities (the "Securities") identified in Schedule I to the
applicable Pricing Agreement (with respect to such Pricing Agreement, the "Firm
Designated Securities") representing undivided beneficial interests in the
assets of the Designated Trust, guaranteed by the Guarantor to the extent set
forth in the guarantee agreement (the "Guarantee") identified in such Pricing
Agreement. If specified in such Pricing Agreement, the Designated Trust may
grant to the Underwriters the right to purchase at their election an additional
number of Securities, specified in such Pricing Agreement as provided in
Section 3 hereof (the "Optional Designated Securities"). The Firm Designated
Securities and any Optional Designated Securities are collectively called the
"Designated Securities." The proceeds of the sale of the Designated
Securities and of common securities of the Trust (the "Common Securities") sold
to the Guarantor are to be invested in junior subordinated deferrable interest
debentures of the Guarantor (the "Subordinated Debentures"), to be issued
pursuant to a junior subordinated indenture (the "Indenture") identified in the
Pricing Agreement.
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The Designated Securities may be exchangeable into Subordinated
Debentures, as specified in Schedule II to such Pricing Agreement. Pursuant to
the Guarantee Agreement identified in the Pricing Agreement relating to any
particular issuance of Designated Securities, the Designated Securities will be
guaranteed by the Guarantor to the extent set forth in such Pricing Agreement
(the "Guarantee").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the amended and restated trust agreement (the "Trust
Agreement") identified in such Pricing Agreement.
Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities 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 Underwriters who act without any firm being designated
as their representative. These Underwriting Agreement Basic Provisions (the
"Underwriting Agreement") shall not be construed as an obligation of any Trust
to sell any of the Securities or as an obligation of any of the Underwriters to
purchase any of the Securities. The obligation of any Trust to issue and sell
any of the Securities and the obligation of any of the Underwriters to purchase
any of the Securities shall be evidenced by the Pricing Agreement with respect
to the Securities specified therein. Each Pricing Agreement shall specify the
aggregate number of Firm Designated Securities, the aggregate number of
Optional Designated Securities, if any, the initial public offering price of
such Firm and Optional Designated Securities or the manner of determining such
price, the terms of the Designated Securities, including the terms on which and
terms of the securities into which the Designated Securities will be
exchangeable, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters and the number of such
Designated Securities 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 Securities and payment
therefor. The Pricing Agreement shall also specify (to the extent not set
forth in the Trust Agreement or the registration statement and prospectus with
respect thereto) the terms of such Securities. 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 this Agreement and each
Pricing Agreement shall be several and not joint.
1. Each of the Guarantor and the Designated Trust jointly and
severally represents and warrants to, and agrees with, each of the Underwriters
that:
(a) A registration statement on Form S-3 (File No.
333-49201) in respect of the Securities, the Subordinated Debentures, the
Guarantees and certain other debt securities, preferred stock, common stock,
warrants, stock purchase contracts, stock purchase units or a combination
thereof has been filed with the Securities and Exchange Commission (the
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"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
therein, 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; 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 Securities Act of 1933,
as amended (the "Act"), being hereinafter called a "Preliminary Prospectus";
the various parts of such registration statement, including (i) the information
contained in the form of final prospectus filed with the Commission pursuant to
Rule 424(b) under the Act in accordance with Section 4(a) hereof and deemed by
virtue of Rule 430A under the Act to be part of the registration statement at
the time it was declared effective and (ii) all exhibits thereto and the
documents incorporated by reference in the prospectus contained in the
registration statement at the time such part of the registration statement
became effective, being hereinafter called the "Registration Statement"; the
prospectus relating to the Securities, the Subordinated Debentures and the
Guarantees, 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 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 Guarantor filed pursuant to Section 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 as amended or supplemented shall be deemed to refer to the
Prospectus as amended or supplemented 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 4(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
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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 Designated Trust or the Guarantor by an Underwriter of
Designated Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities;
(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 Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), and the rules and regulations of the Commission thereunder and do not
and will not, as of the applicable effective date as to the Registration
Statement and any amendment thereto and as of the applicable filing date as to
the Prospectus and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Designated Trust or the Guarantor by an
Underwriter of Designated Securities through the Representatives expressly for
use in the Prospectus as amended or supplemented relating to such Securities;
(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 Designated
Trust or the Guarantor 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 exercise
of options and stock appreciation rights or pursuant to existing employee
benefit plans and upon conversions of convertible securities which were
outstanding on the date of the latest balance sheet included or incorporated by
reference in the Prospectus) or any increase in the consolidated long-term debt
of the Guarantor and its subsidiaries in excess of 5% 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 Guarantor and its subsidiaries taken as
a whole, otherwise than as set forth or contemplated in the Prospectus;
(e) The Guarantor and each subsidiary of the Guarantor which meets
the definition of a significant subsidiary as defined in Regulation S-X of the
Commission (each a "Significant Subsidiary") has been duly incorporated and is
validly existing as a corporation under the laws of the jurisdiction of its
incorporation (except when failure to be qualified would not have a material
adverse effect on the Guarantor and the subsidiaries taken as a whole), with
power and authority (corporate and other) to own its properties and conduct its
business as
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described in the Prospectus; and each Trust has been duly organized and is
validly existing as a business trust in good standing under the laws of the
State of Delaware, with power and authority to own, lease and operate its
properties and conduct its business as described in the Prospectus;
(f) The Guarantor has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the Guarantor
have been duly and validly authorized and issued and are fully paid and
non-assessable; all the outstanding beneficial interests in the Designated
Trust have been duly and validly authorized and issued, are fully paid and
non-assessable and conform to the descriptions thereof contained in the
Prospectus;
(g) The Securities have been duly authorized and, when Designated
Securities are issued and delivered pursuant to this Agreement and the Pricing
Agreement with respect to such Designated Securities, such Designated
Securities will have been duly and validly issued and fully paid and
non-assessable beneficial interests in the Designated Trust entitled to the
benefits provided by the Trust Agreement, which will be substantially in the
form filed as an exhibit to the Registration Statement; and the Securities
conform to the description thereof contained in the Registration Statement and
the Designated Securities will conform to the description thereof contained in
the Prospectus as amended or supplemented with respect to such Designated
Securities;
(h) The holders of the Securities (the "Security holders") will be
entitled to the same limitation of personal liability extended to stockholders
of private corporations for profit organized under the General Corporation Law
of the State of Delaware;
(i) The Common Securities of the Designated Trust have been duly
authorized on behalf of the Designated Trust by the depositor of the Designated
Trust and upon delivery by the Designated Trust to the Guarantor against
payment therefor as set forth in the Trust Agreement, will be duly and validly
issued and non-assessable beneficial interests in the Designated Trust and will
conform to the description thereof contained in the Prospectus; the issuance
of the Common Securities is not subject to preemptive or other similar rights;
the Common Securities conform to the description thereof contained in the
Registration Statement; and at each Time of Delivery, all of the issued and
outstanding Common Securities of the Designated Trust will be directly owned by
the Guarantor free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity;
(j) The Guarantee, the Trust Agreement, the Subordinated
Debentures and the Indenture (the Guarantee, the Trust Agreement, the
Subordinated Debentures and the Indenture being collectively referred to as the
"Guarantor Agreements") have each been duly authorized and when validly
executed and delivered by the Guarantor and, in the case of the Guarantee, by
the Guarantee Trustee (as defined in the Guarantee), in the case of the Trust
Agreement, by the Trustees (as defined in the Trust Agreement) and, in the case
of the Indenture, by the Trustee named therein (the "Debenture Trustee"), and,
in the case of the Subordinated Debentures, when validly issued by the
Guarantor and validly authenticated and delivered by the Debenture
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Trustee, will constitute valid and legally binding obligations of the
Guarantor, enforceable in accordance with their respective terms, subject to
the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing; the
Trust Agreement, the Indenture and the Guarantee have been duly qualified under
the Trust Indenture Act; the Subordinated Debentures are entitled to the
benefits of the Indenture; and the Guarantor Agreements, which will be in
substantially in the form filed as an exhibit to the Registration Statement
will conform to the descriptions thereof in the Prospectus;
(k) The issue and sale of the Designated Securities and the
compliance by the Designated Trust with all of the provisions of the Designated
Securities, the Trust Agreement, this Agreement and any Pricing Agreement, the
purchase of the Subordinated Debentures by the Designated Trust and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Designated
Trust is a party or by which the Designated Trust is bound or to which any of
the property or assets of the Designated Trust is subject, nor will such action
result in any violation of the provisions of the Trust Agreement or any statute
or any order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Designated Trust or any of its properties; and no
consent, approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the issue
and sale of the Designated Securities and the Common Securities by the
Designated Trust, the purchase of the Subordinated Debentures by the Designated
Trust or the consummation by the Designated Trust of the transactions
contemplated by this Agreement or any Pricing Agreement or the Trust Agreement,
except such as have been, or will have been prior to the Time of Delivery,
obtained under the Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters;
(l) The issuance by the Guarantor of the Guarantee, the compliance
by the Guarantor with all of the provisions of this Agreement and the Pricing
Agreement, the execution, delivery and performance by the Guarantor of the
Guarantor Agreements, and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Guarantor or any of its subsidiaries is a party or by
which the Guarantor or any of its subsidiaries is bound or to which any of the
property or assets of the Guarantor or any of its subsidiaries is subject,
except for such conflicts, breaches, violations or defaults as would not,
individually or in the aggregate, have a material adverse effect on the
consolidated financial position of the Guarantor and its subsidiaries or the
consummation by the Guarantor of the transactions contemplated by this
Agreement, the Pricing Agreement or any Guarantor Agreement, nor will such
action result in any violation of the provisions of the Articles of
Incorporation or by-laws of the Guarantor or the charter or by-laws of any of
its subsidiaries or
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any statute or any order, rule or regulation of any court or governmental
agency or body (including, without limitation, any insurance regulatory agency
or body) having jurisdiction over the Guarantor or any of its subsidiaries or
any of their properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental agency
or body is required for the issue of the Guarantee or the consummation by the
Guarantor of the other transactions contemplated by this Agreement or the
Pricing Agreement, except such as have been or will have been obtained prior to
the First Time of Delivery, the registration under the Act of the Securities
and the qualification of the Trust Agreement, the Indenture and the Guarantee
under the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase of the Securities and
distribution of the Securities by the Underwriters;
(m) Neither the Designated Trust nor the Guarantor is, and after
giving effect to the offering and sale of the Designated Securities, neither
the Designated Trust nor the Guarantor will 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 (the "Investment Company Act");
(n) Except as described in the Prospectus, there is no action,
suit or proceeding pending, nor to the knowledge of the Guarantor, is there any
action, suit or proceeding threatened, which would be reasonably expected to
result in a material adverse change in the financial condition, results of
operations or business of the Guarantor and its subsidiaries taken as a whole
or which is required to be disclosed in the Registration Statement;
(o) To the best of the Guarantor's knowledge and belief, the
Guarantor has complied in all material respects with each, and the conduct of
its business and the conduct of business by its subsidiaries does not violate
in any material respect any, statutes, laws, regulations, rules, orders or
directives of any federal, state or local governmental authority applicable to
the Guarantor and its subsidiaries;
(p) The accountants who certified the financial statements of the
Guarantor and its subsidiaries included in or incorporated by reference in the
Prospectus are independent public accountants as required by the 1933 Act and
the 1933 Regulations;
(q) The financial statements of the Guarantor and its consolidated
subsidiaries included or incorporated by reference in the Registration
Statement and the Prospectus present fairly in all material respects the
consolidated financial position of the Guarantor and its consolidated
subsidiaries as of the dates indicated and the consolidated results of their
operations for the periods specified; and, except as stated therein, said
financial statements have been prepared in conformity with generally accepted
accounting principles in the United States applied on a consistent basis; and
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(r) This Underwriting Agreement and the Pricing Agreement have
been duly authorized and the Pricing Agreement (incorporating this Underwriting
Agreement) has been executed and delivered by the Guarantor and the Designated
Trust.
2. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release
of such Designated Securities, the several Underwriters propose to offer the
Firm Designated Securities for sale upon the terms and conditions set forth in
the Prospectus as amended or supplemented.
The Designated Trust may specify in the Pricing Agreement applicable to
any Designated Securities that the Designated Trust thereby grants to the
Underwriters the right (an "Over-allotment Option") to purchase at their
election up to the number of Optional Designated Securities set forth in such
Pricing Agreement, on the terms set forth in the paragraph above, for the sole
purpose of covering over-allotments in the sale of the Firm Designated
Securities. Any such election to purchase Optional Designated Securities may
be exercised only by written notice from the Representatives to the Designated
Trust and the Guarantor, given within a period specified in the Pricing
Agreement, setting forth the aggregate number of Optional Designated Securities
to be purchased and the date on which such Optional Designated Securities are
to be delivered, as determined by the Representatives but in no event earlier
than the First Time of Delivery (as defined in Section 3 hereof) or, unless the
Representatives, the Guarantor and the Designated Trust otherwise agree in
writing, earlier than or later than the respective number of business days
after the date of such notice set forth in such Pricing Agreement.
The number of Optional Designated Securities to be added to the number of
Firm Designated Securities to be purchased by each Underwriter as set forth in
Schedule I to the Pricing Agreement applicable to such Designated Securities
shall be, in each case, the number of Optional Designated Securities which each
of the Guarantor and the Designated Trust has been advised by the
Representatives have been attributed to such Underwriter, provided that, if
each of the Guarantor and the Designated Trust has not been so advised, the
number of Optional Designated Securities to be so added shall be, in each case,
that proportion of Optional Designated Securities which the number of Firm
Designated Securities to be purchased by such Underwriter under such Pricing
Agreement bears to the aggregate number of Firm Designated Securities (rounded
as the Representatives may determine to the nearest 100 securities). The total
number of Designated Securities to be purchased by all the Underwriters
pursuant to such Pricing Agreement shall be the aggregate number of Firm
Designated Securities set forth in Schedule I to such Pricing Agreement plus
the aggregate number of Optional Designated Securities which the Underwriters
elect to purchase.
3. Designated Securities to be purchased by each Underwriter pursuant
to the Pricing Agreement relating thereto, in definitive form to the extent
practicable, 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 Designated Trust, shall be delivered by or on behalf of the
Designated Trust to the Representatives for the account of such Underwriter,
against payment by such Underwriter or on its behalf of the purchase price
therefor by certified or official bank check or checks, payable to the order of
the Designated Trust in the funds specified in such
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Pricing Agreement, 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 Designated Trust may agree upon in writing. Such
time and date for delivery of Firm Designated Securities pursuant to the
Pricing Agreement relating thereto is herein called the "First Time of
Delivery," such time and date for delivery of Optional Designated Securities,
if not the First Time of Delivery, is herein called the "Second Time of
Delivery," and each such time and date is herein called the "Time of Delivery."
4. The Designated Trust and the Guarantor jointly and severally agree
with each of the Underwriters of any Designated Securities:
(a) To prepare the Prospectus as amended and supplemented in
relation to the applicable Designated Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under the
Act not later than the Commission's close of business on the second business
day following the execution and delivery of the Pricing Agreement relating to
the applicable Designated Securities 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 Securities and prior to the
Time of Delivery for such Securities which shall be disapproved by the
Representatives for such Securities 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 Guarantor 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 Securities, 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 Securities,
of the suspension of the qualification of such Securities or the Subordinated
Debentures issuable upon exchange of the 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 Securities
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 such Securities or the
Subordinated Debentures issuable upon exchange of the Securities for offering
and sale under the 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 Securities, provided that in
connection therewith neither the Designated
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Trust nor the Guarantor shall 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 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 or the
Subordinated Debentures issuable upon exchange of the Securities and if at such
time any event shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it shall
be necessary during such same 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, the Exchange Act or the Trust
Indenture Act, to notify the Representatives and 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) In the case of the Guarantor, to make generally available to
its security holders 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)), an earnings statement of the Guarantor 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 Guarantor, Rule 158);
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and including the
later of (i) the termination of trading restrictions for such Designated
Securities, as notified to the Guarantor by the Representatives and (ii) 30
days after the last Time of Delivery for such Designated Securities, not to
offer, sell, contract to sell or otherwise dispose of, except as provided
hereunder, any Securities, any other beneficial interests in the assets of the
Designated Trust, or any preferred securities or any other securities of the
Designated Trust or the Guarantor, as the case may be, that are substantially
similar to such Designated Securities (including any guarantee of such
securities) or any securities that are convertible into or exchangeable for, or
that represent the right to receive securities, preferred securities or any
such substantially similar securities of either the Designated Trust or the
Guarantor that are subordinated to the Senior Debt (as defined in the
Indenture) of the Guarantor in a manner substantially similar to the
subordination of the Subordinated Debentures without the prior written consent
of the Representatives;
(f) In the case of the Guarantor, to issue the Guarantee
concurrently with the issue and sale of the Securities as contemplated herein
or in the Pricing Agreement; and
(g) To use its best efforts to list, subject to notice of
issuance, the Securities on the New York Stock Exchange.
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5. The Guarantor covenants and agrees with the several Underwriters
that the Guarantor will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Trusts' and the Guarantor's counsel and
accountants in connection with the registration of the Securities, the
Guarantees and the Subordinated Debentures under the Act and all other expenses
in connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, any Pricing Agreement, any Trust Agreement,
any Indenture, any Guarantee, any Blue Sky or similar investment surveys or
memoranda and any other documents in connection with the offering, purchase,
sale and delivery of the Securities; (iii) all reasonable expenses in
connection with the qualification of the Securities, the Guarantees and the
Subordinated Debentures 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 and legal investment surveys; (iv) any fees
charged by securities rating services for rating the Securities and the
Subordinated Debentures; (v) any filing fees incident to, and the fees and
disbursements of counsel for the Underwriters in connection with, any required
reviews by the National Association of Securities Dealers, Inc. of the terms of
the sale of the Securities and the issuance of the Guarantees and the
Subordinated Debentures; (vi) the cost of preparing the Securities and the
Subordinated Debentures; (vii) the fees and expenses of any Trustee, Debenture
Trustee and Guarantee Trustee, and any agent of any trustee and the fees and
disbursements of counsel for any trustee in connection with any Trust
Agreement, Indenture, Guarantee and the Securities; (viii) the cost of
qualifying the Securities with The Depository Trust Company; (ix) all fees and
expenses in connection with the listing of the Securities on the New York Stock
Exchange and the cost of registering the Securities under Section 12 of the
Exchange Act; and (x) all other costs and expenses incident to the performance
of its obligations hereunder and under any Over-allotment Option which are not
otherwise specifically provided for in this Section. It is understood,
however, that, except as provided in this Section, Section 8 and Section 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
Securities by them, and any advertising expenses connected with any offers they
may make.
6. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Designated Trust and
the Guarantor in or incorporated by reference in the Pricing Agreement relating
to such Designated Securities are, at and as of the respective Time of Delivery
for such Designated Securities, true and correct, the condition that the
Designated Trust and the Guarantor shall have performed all of their respective
obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated 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 4(a) hereof; no stop order suspending the effectiveness of the
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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 respective Time of Delivery
for such Designated Securities, with respect to the incorporation of the
Guarantor and the formation of the Designated Trust, the validity of the
Designated Securities, the Subordinated Debentures, the Guarantee, the
Registration Statement, the Prospectus as amended or supplemented and other
related matters as the Representatives may reasonably request, and such counsel
shall have received such papers and information as they may reasonably request
to enable them to pass upon such matters;
(c) Xxxx X. Xxxxxx, Esq. or the then General Counsel for the
Guarantor, shall have furnished to the Representatives his or her written
opinion, dated the respective Time of Delivery for such Designated Securities,
in form and substance satisfactory to the Representatives, to the effect that:
(i) The Guarantor and each Significant Subsidiary has been
duly incorporated and is validly existing as a corporation under the
laws of the jurisdiction of its incorporation, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Prospectus as amended or supplemented;
(ii) Except as described in the Prospectus, there is no
action, suit or proceeding pending, nor to the best of such counsel's
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
Guarantor and its subsidiaries taken as a whole or which is required to
be disclosed in the Registration Statement;
(iii) This Agreement and the Pricing Agreement with respect
to the Designated Securities have been duly authorized, executed and
delivered by the Designated Trust and the Guarantor;
(iv) The issuance by the Guarantor of the Guarantee and the
Subordinated Debentures, the compliance by the Guarantor with all of
the provisions of this Agreement, the execution, delivery and
performance by the Guarantor of the Guarantor Agreements and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any material
indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument known to such counsel to which the Guarantor or
any of its subsidiaries is a party or by which the Guarantor or any of
its subsidiaries is bound or to which any of the property or assets of
the Guarantor or any of its
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subsidiaries is subject, except for such conflicts, breaches,
violations or defaults as would not, individually or in the aggregate,
have a material adverse effect on the consolidated financial position
of the Guarantor and its subsidiaries or the consummation by the
Guarantor of the transactions contemplated by this Agreement, the
Pricing Agreement or any Guarantor Agreement, nor will such actions
result in any violation of the provisions of the Guarantor's Articles
of Incorporation or by-laws or any statute or any order, rule or
regulation known to such counsel of any court or governmental agency or
body (including any insurance regulatory agency or body (having
jurisdiction over the Guarantor or any of its subsidiaries or any of
their properties;
(v) The Guarantor Agreements have each been duly authorized,
executed and delivered by the parties thereto and constitute valid and
legally binding obligations of the Guarantor, enforceable in accordance
with their respective terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law); the Guarantor
Agreements conform to the descriptions thereto in the Prospectus as
amended or supplemented; the Subordinated Debentures are entitled to
the benefits provided by the Indenture; and the Trust Agreement, the
Indenture and the Guarantee have been duly qualified under the Trust
Indenture Act;
(vi) The Designated Securities have been duly authorized by
the Depositor on behalf of the Designated Trust; the issue and sale of
the Designated Securities and the compliance by the Designated Trust
with all of the provisions of the Designated Securities, the Trust
Agreement, this Agreement and the Pricing Agreement with respect to the
Designated Securities, the purchase by the Designated Trust of the
Subordinated Debentures and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a
default under, any agreement or instrument known to such counsel to
which the Designated Trust is a party or by which the Designated Trust
is bound or to which any of the property or assets of the Designated
Trust is subject;
(vii) No consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue of the Guarantee or the
consummation by the Guarantor of the transactions contemplated by this
Agreement or such Pricing Agreement or the Guarantor Agreements, except
such as have been obtained under the Act and the Trust Indenture Act
and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Designated
Securities by the Underwriters;
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Such counsel shall also furnish you with a letter to the effect that, as
counsel to the Guarantor, he has no reason to believe that, as of its effective
date, the Registration Statement or any further amendment thereto made by the
Guarantor or the Designated Trust prior to the Time of Delivery (other than the
financial statements and related schedules and other financial data therein, as
to which such counsel need not comment) 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 Guarantor or the Designated Trust prior to the
Time of Delivery (other than the financial statements and related schedules and
other financial data therein, as to which such counsel need not comment)
contained an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in light of the
circumstances in 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
Guarantor or the Designated Trust prior to the Time of Delivery (other than the
financial statements and related schedules and other financial data therein, as
to which such counsel need not comment) contains an untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements therein, in 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) and that no comment need be
given as to the portion of the Registration Statement which shall constitute
the Form T-1;
(d) Xxxxxxxxxxxx Xxxx & Xxxxxxxxx, Counsel for the Designated
Trust and the Guarantor, shall have furnished to the Representatives their
written opinion, dated the respective Time of Delivery for such Designated
Securities, in form and substance satisfactory to the Representatives, to the
effect that:
(i) The Guarantor and each Significant Subsidiary has been
duly incorporated and is validly existing as a corporation under the
laws of the jurisdiction of its incorporation, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Prospectus as amended or supplemented;
(ii) Except as described in the Prospectus, there is no
action, suit or proceeding pending, nor to the best of such counsel's
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
Guarantor and its subsidiaries taken as a whole or which is required to
be disclosed in the Registration Statement;
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(iii) This Agreement and the Pricing Agreement with respect
to the Designated Securities have been duly authorized, executed and
delivered by the Designated Trust and the Guarantor;
(iv) The issuance by the Guarantor of the Guarantee and the
Subordinated Debentures, the compliance by the Guarantor with all of
the provisions of this Agreement, the execution, delivery and
performance by the Guarantor of the Guarantor Agreements and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any material
indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument known to such counsel to which the Guarantor
or any of its Significant Subsidiaries is a party or by which the
Guarantor or any of its Significant Subsidiaries is bound or to which
any of the property or assets of the Guarantor or any of its
Significant Subsidiaries is subject, except for such conflicts,
breaches, violations or defaults as would not, individually or in the
aggregate, have a material adverse effect on the consolidated financial
position of the Guarantor and its subsidiaries or the consummation by
the Guarantor of the transactions contemplated by this Agreement, the
Pricing Agreement or any Guarantor Agreement, nor will such actions
result in any violation of the provisions of the Guarantor's Articles
of Incorporation or by-laws or any statute or any order, rule or
regulation known to such counsel of any court or governmental agency or
body (including any insurance regulatory agency or body (having
jurisdiction over the Guarantor or any of its Significant Subsidiaries
or any of their properties;
(v) The Guarantor Agreements have each been duly authorized,
executed and delivered by the parties thereto and constitute valid and
legally binding obligations of the Guarantor, enforceable in accordance
with their respective terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law); the Guarantor
Agreements conform to the descriptions thereof in the Prospectus as
amended or supplemented; the Subordinated Debentures are entitled to
the benefits provided by the Indenture; and the Trust Agreement, the
Indenture and the Guarantee have been duly qualified under the Trust
Indenture Act;
(vi) The Designated Securities have been duly authorized by
the Depositor on behalf of the Designated Trust; the issue and sale of
the Designated Securities and the compliance by the Designated Trust
with all of the provisions of the Designated Securities, the Trust
Agreement, this Agreement and the Pricing Agreement with respect to the
Designated Securities, the purchase by the Designated Trust of the
Subordinated Debentures and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a
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breach or violation of any of the terms or provisions of, or
constitute a default under, any agreement or instrument known to such
counsel to which the Designated Trust is a party or by which the
Designated Trust is bound or to which any of the property or assets of
the Designated Trust is subject;
(vii) The Subordinated Debentures, in the form certified by
the Guarantor to be true and correct copies, are in the forms
prescribed in or pursuant to the Indenture, have been duly and validly
authorized by the Guarantor by all necessary corporate action and, when
completed, executed and authenticated as specified in or pursuant to
the Indenture and issued and delivered upon exchange of the Securities
will be valid and binding obligations of the Guarantor, enforceable in
accordance with their terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles (regardless of whether such enforceability is
considered in a proceeding at equity or in law);
(viii) The Registration Statement is effective under the Act
and, to the best of such counsel's knowledge, no stop order suspending
the effectiveness of the Registration Statement has been issued under
the Act or proceedings therefor initiated or threatened by the
Commission;
(ix) The statements set forth in the Prospectus under the
captions "Description of Junior Subordinated Debentures", "Description
of Preferred Securities", "Description of Guarantees", "Description of
Corresponding Junior Subordinated Debentures" and "Relationship Among
the Preferred Securities, the Corresponding Junior Subordinated
Debentures and the Guarantees" and "Plan of Distribution" and in the
Prospectus Supplement under the caption "Certain Terms of
______________" and "Underwriting" insofar as they purport to summarize
certain provisions of documents specifically referred to therein, are
accurate summaries of such provisions in all material respects.
(x) No consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency or
body is required for the issue of the Guarantee or the consummation by
the Guarantor of the transactions contemplated by this Agreement or
such Pricing Agreement or the Guarantor Agreements, except such as have
been obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Designated Securities by the
Underwriters;
(xi) Neither the Designated Trust nor the Guarantor is an
"investment company" or an entity controlled by an "investment company"
required to be registered under the Investment Company Act;
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(xii) 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.
Such counsel shall also furnish you with a letter to the effect that, the
Registration Statement and the Prospectus as amended or supplemented and any
further amendments and supplements thereto made by the Guarantor or the
Designated Trust prior to the Time of Delivery for the Designated Securities
(other than the financial statements and related schedules and other financial
data therein, as to which such counsel need not comment) comply as to form in
all material respects with the requirements of the Act and the Trust Indenture
Act and the rules and regulations thereunder; 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 made by the Guarantor or the Designated Trust prior
to the Time of Delivery (other than the financial statements and related
schedules and other financial data therein, as to which such counsel need not
comment) 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
Guarantor or the Designated Trust prior to the Time of Delivery (other than the
financial statements and related schedules and other financial data therein, as
to which such counsel need not comment) contained an untrue statement of a
material fact or omitted to state a material fact necessary in order to make
the statements therein, in light of the circumstances in 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 Guarantor or the Designated Trust prior to
the Time of Delivery (other than the financial statements and related schedules
and other financial data therein, as to which such counsel need not comment)
contains an untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements therein, in 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 such counsel has
not independently verified factual statements in the Prospectus (or any such
amendment or supplement);
(e) Xxxxxxxx, Xxxxxx & Finger, special Delaware Counsel to the
Designated Trust and the Guarantor, shall have furnished to you, the Guarantor
and the Designated Trust
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their written opinion, dated the respective Time of Delivery, in form and
substance satisfactory to you, to the effect that:
(i) The Designated Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware
Business Trust Act, and all filings required under the laws of the
State of Delaware with respect to the creation and valid existence of
the Designated Trust as a business trust have been made;
(ii) Under the Delaware Business Trust Act and the Trust
Agreement, the Designated Trust has the power and authority to own
property and conduct its business, all as described in the Prospectus;
(iii) The Trust Agreement constitutes a valid and legally
binding obligation of the Guarantor and the Trustees, enforceable
against the Guarantor and the Trustees, in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles;
(iv) Under the Delaware Business Trust Act and the Trust
Agreement, the Designated Trust has the power and authority to (a)
execute and deliver the Pricing Agreement (incorporating this
Underwriting Agreement) and to perform its obligations under this
Underwriting Agreement and the Pricing Agreement, and (b) issue and
perform its obligations under the Designated Securities and the Common
Securities;
(v) Under the Delaware Business Trust Act and the Trust
Agreement, the execution and delivery by the Designated Trust of the
Pricing Agreement (incorporating this Underwriting Agreement) and the
performance by the Designated Trust of its obligations thereunder, have
been duly authorized by all necessary action on the part of the
Designated Trust;
(vi) The Designated Securities have been duly authorized by
the Trust Agreement and are duly and validly issued and, subject to
the qualifications set forth herein, fully paid and nonassessable
beneficial interests in the Designated Trust and are entitled to the
benefits provided by the Trust Agreement; the Securityholders, as
beneficial owners of the Designated Trust, will be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of
the State of Delaware; provided that such counsel may note that the
Securityholders may be obligated, pursuant to the Trust Agreement, to
(a) provide indemnity and/or security in connection with and pay taxes
or governmental charges arising from transfers or exchanges of
Securities Certificates and the issuance of replacement Securities
Certificates and (b) provide security and indemnity in connection with
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requests of or directions to the Property Trustee (as defined in the
Trust Agreement) to exercise its rights and remedies under the Trust
Agreement;
(vii) The Common Securities have been duly authorized by the
Trust Agreement and are validly issued and represent beneficial
interests in the Designated Trust;
(viii) Under the Delaware Business Trust Act and the Trust
Agreement, the issuance of the Designated Securities and the Common
Securities is not subject to preemptive rights;
(ix) The issuance and sale by the Designated Trust of
Designated Securities and the Common Securities, the execution and
delivery of the Pricing Agreement (incorporating this Underwriting
Agreement) and performance by the Designated Trust of this Underwriting
Agreement and the Pricing Agreement, the consummation by the Designated
Trust of the transactions contemplated thereby and compliance by the
Designated Trust with its obligations thereunder will not violate (a)
any of the provisions of the Certificate of Trust of the Designated
Trust or the Trust Agreement, or (b) any applicable Delaware law or
administrative regulation;
(x) Assuming that the Designated Trust derives no income from
or connected with services provided within the State of Delaware and
has no assets, activities (other than maintaining the Delaware Trustee
and the filing of documents with the Secretary of State of the State of
Delaware) or employees in the State of Delaware, no authorization,
approval, consent or order of any Delaware court or governmental
authority or agency is required to be obtained by the Designated Trust
solely in connection with the issuance and sale of the Designated
Securities and the Common Securities. In rendering the opinion
expressed in this paragraph (x), such counsel need express no opinion
concerning the securities laws of the State of Delaware;
(xi) Assuming that the Designated Trust derives no income
from or connected with services provided within the State of Delaware
and has no assets, activities (other than maintaining the Delaware
Trustee and the filing of documents with the Secretary of State of the
State of Delaware) or employees in the State of Delaware, the
Securityholders (other than those holders of the Securities who reside
or are domiciled in the State of Delaware) will have no liability for
income taxes imposed by the State of Delaware solely as a result of
their participation in the Designated Trust, and the Designated Trust
will not be liable for any income tax imposed by the State of Delaware;
(f) Xxxxxxxxxxxx Xxxx & Xxxxxxxxx, tax counsel for the Designated
Trust and the Guarantor, shall have furnished to you their written opinion,
dated the respective Time of Delivery, in form and substance satisfactory to
you, to the effect that such firm confirms its
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opinion set forth in the Prospectus under the caption "Certain Federal Income
Tax Consequences";
(g) At the respective Time of Delivery for such Designated
Securities, and, if so specified in the Pricing Agreement, on the date of the
Pricing Agreement, the independent accountants of the Guarantor who have
certified the financial statements of the Guarantor and its subsidiaries
included or incorporated by reference in the Registration Statement shall have
furnished to the Representatives a letter, dated such Time of Delivery and, if
applicable, such date of the Pricing Agreement, respectively, to the effect set
forth in Annex II hereto, and with respect to such letter dated such Time of
Delivery, as to such other matters as the Representatives may reasonably
request and in form and substance satisfactory to the Representatives;
(h) Except as contemplated in the Prospectus, since the respective
dates as of which information is given in the Prospectus as amended or
supplemented until the respective Time of Delivery of the Designated
Securities, there shall not have been any changes in the consolidated capital
stock (other than issuances of capital stock upon exercise of options and stock
appreciation rights or pursuant to existing employee benefit plans and upon
conversions of convertible securities which were outstanding on the date of the
latest balance sheet included or incorporated by reference in the Prospectus)
or any increase in the consolidated long-term debt of the Guarantor and its
subsidiaries in excess of 5% or any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Guarantor and
its subsidiaries taken as a whole, otherwise than as set forth or contemplated
in the Prospectus as amended or supplemented, the effect of which, in any such
case is in the judgment of the Representatives so material and adverse as to
make it impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus as amended or supplemented;
(i) On or after the date of the Pricing Agreement relating to the
Designated Securities until the respective Time of Delivery of the Designated
Securities (i) no downgrading shall have occurred in the rating accorded the
Guarantor's debt securities or preferred stock 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 Guarantor's debt securities or
preferred stock;
(j) On or after the date of the Pricing Agreement relating to the
Designated Securities until the respective Time of Delivery of the Designated
Securities 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; (ii) a suspension or material limitation in trading in the
Guarantor's securities on the New York Stock Exchange; (iii) a general
moratorium on commercial banking activities declared by either Federal or New
York State authorities; or (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war, if the effect of any such event specified in this
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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 Securities on the terms and in the manner contemplated in the
Prospectus as amended or supplemented relating to the Designated Securities;
(k) The Designated Securities to be sold by the Designated Trust
at the respective Time of Delivery shall have been duly listed, subject to
notice of issuance, on the New York Stock Exchange; and
(l) The Designated Trust and the Guarantor shall have furnished or
caused to be furnished to the Representatives at the respective Time of
Delivery for the Designated Securities certificates of officers of the
Designated Trust and the Guarantor satisfactory to the Representatives as to
the accuracy of the representations and warranties of the Designated Trust and
the Guarantor herein at and as of such Time of Delivery, as to the performance
by the Designated Trust and the Guarantor of all of their obligations hereunder
to be performed at or prior to such Time of Delivery, as to the matters set
forth in subsections (a) and (h) of this Section and as to such other matters
as the Representatives may reasonably request.
7. (a) The Designated Trust and the Guarantor will jointly and severally
indemnify and hold harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Designated Securities, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action or
claim as such expenses are incurred; provided, however, that neither the
Designated Trust nor the Guarantor shall be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Designated Securities, or
any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Designated Trust or the Guarantor by any
Underwriter of Designated Representatives expressly for use in the Prospectus
as amended or supplemented relating to such Securities and; provided, further,
that neither the Designated Trust nor the Guarantor shall be liable to any
Underwriter under the indemnity agreement in this subsection (a) with respect
to any loss, claim, damage or liability resulting from an untrue or alleged
untrue statement or omission or alleged omission of a material fact in a
Preliminary Prospectus to the extent that a court of competent jurisdiction has
found by final and nonappealable order that any such loss, claim, damage or
liability of such Underwriter results from the fact that such Underwriter sold
Securities to a person to whom there was not sent or given, at or prior to the
written
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confirmation of such sale, a copy of the Prospectus as then amended or
supplemented (excluding documents incorporated by reference), if such
Underwriter failed to make efforts generally consistent with the then
prevailing industry practice to effect such delivery and (i) such delivery to
such person is required by Section 5 of the Act, (ii) the Designated Trust or
the Guarantor has furnished copies of such Prospectus as amended or
supplemented to such Underwriter a reasonable period of time prior to the
Underwriter being required so to deliver such Prospectus as amended or
supplemented and (iii) such Prospectus as amended or supplemented corrected the
untrue or alleged untrue statement or omission or alleged omission of material
fact contained in the Preliminary Prospectus.
(b) Each Underwriter will indemnify and hold harmless the
Designated Trust and the Guarantor against any losses, claims, damages or
liabilities to which the Designated Trust or the Guarantor may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Securities, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Designated Trust or the Guarantor by such
Underwriter through the Representatives expressly for use therein; and will
reimburse the Designated Trust or the Guarantor for any legal or other expenses
reasonably incurred by the Designated Trust or the Guarantor in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. No
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indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include any 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 7 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Designated Trust and the Guarantor on the
one hand and the Underwriters of the Designated Securities on the other from
the offering of the Designated Securities to which such loss, claim, damage or
liability (or action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Designated Trust and the Guarantor on the one hand and the
Underwriters of the Designated Securities on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Designated
Trust and the Guarantor on the one hand and such Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds from
such offering (before deducting expenses) received by the Designated Trust less
the total underwriting compensation paid by the Guarantor bear to the total
underwriting discounts and commissions received by such 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 Designated Trust and the Guarantor 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
Designated Trust, the Guarantor 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 or by any other method of allocation (even if
the Underwriters were treated as one entity for such purpose) 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 applicable Designated Securities
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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
Securities in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations with respect to such Securities and
not joint.
(e) The obligations of the Designated Trust and the Guarantor
under this Section 7 shall be in addition to any liability which the Designated
Trust and the Guarantor may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section 7 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Guarantor, to each
administrative trustee of the Designated Trust and to each person, if any, who
controls the Designated Trust or the Guarantor within the meaning of the Act.
8. (a) If any Underwriter shall default in its obligation to purchase
the Firm Designated Securities or the Optional Designated Securities which it
has agreed to purchase under the Pricing Agreement relating to such Designated
Securities, the Representatives may in their discretion arrange for themselves
or another party or other parties to purchase such Designated Securities 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 Firm
Designated Securities or such Optional Designated Securities, as the case may
be, then the Designated Trust and the Guarantor shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties satisfactory to the Representatives to purchase such Designated
Securities on such terms. In the event that, within the respective prescribed
period, the Representatives notify the Designated Trust and the Guarantor that
they have so arranged for the purchase of such Designated Securities, or the
Designated Trust and the Guarantor notifies the Representatives that it has so
arranged for the purchase of such Designated Securities, the Representatives or
the Designated Trust and the Guarantor shall have the right to postpone the
Time of Delivery for such Designated Securities 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 Designated Trust and the
Guarantor agree 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 this 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 Securities.
(b) If, after giving effect to any arrangements for the purchase
of the Firm Designated Securities or Optional Designated Securities, as the
case may be, of a defaulting Underwriter or Underwriters by the Representatives
and the Designated Trust and the Guarantor
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as provided in subsection (a) above, the aggregate number of such Designated
Securities which remains unpurchased does not exceed one-eleventh of the
aggregate number of the Firm Designated Securities or Optional Designated
Securities, as the case may be, to be purchased at the respective Time of
Delivery, then the Designated Trust and the Guarantor shall have the right to
require each non-defaulting Underwriter to purchase the number of Firm
Designated Securities or Optional Designated Securities, as the case may be,
which such Underwriter agreed to purchase under the Pricing Agreement relating
to such Designated Securities and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the number of Firm
Designated Securities or Optional Designated Securities, as the case may be,
which such Underwriter agreed to purchase under such Pricing Agreement) of the
Firm Designated Securities or Optional Designated Securities, as the case may
be, 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 Firm Designated Securities or Optional Designated Securities, as the
case may be, of a defaulting Underwriter or Underwriters by the Representatives
and the Designated Trust and the Guarantor as provided in subsection (a) above,
the aggregate number of Firm Designated Securities or Optional Designated
Securities, as the case may be, which remains unpurchased exceeds one-eleventh
of the aggregate number of the Firm Designated Securities or Optional
Designated Securities, as the case may be, to be purchased at the respective
Time of Delivery, as referred to in subsection (b) above, or if the Designated
Trust and the Guarantor shall not exercise the right described in subsection
(b) above to require non-defaulting Underwriters to purchase Firm Designated
Securities or Optional Designated Securities, as the case may be, of a
defaulting Underwriter or Underwriters, then the Pricing Agreement relating to
such Firm Designated Securities or Optional Designated Securities, as the case
may be, shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter, the Designated Trust or the Guarantor, except for
the expenses to be borne by the Designated Trust, the Guarantor 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.
9. The respective indemnities, agreements, representations,
warranties and other statements of the Designated Trust, the Guarantor and the
several Underwriters, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person of
any Underwriter, or the Designated Trust, the Guarantor, or any officer or
director or controlling person of the Designated Trust or the Guarantor, and
shall survive delivery of and payment for the Securities.
10. If any Pricing Agreement or Over-allotment Option shall be
terminated pursuant to Section 8 hereof, neither the Designated Trust nor the
Guarantor shall then be under any liability to any Underwriter with respect to
the Firm Designated Securities or Optional Designated Securities covered by
such Pricing Agreement except as provided in Section 5 and Section 7 hereof;
but, if for any other reason, Designated Securities are not delivered by or on
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behalf of the Designated Trust as provided herein, the Designated Trust and the
Guarantor 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
Securities, but the Designated Trust and the Guarantor shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Section 5 and Section 7 hereof.
11. In all dealings hereunder, the Representatives of the Underwriters
of Designated Securities shall act on behalf of each of such Underwriters, and
the parties hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the 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; and if to the Designated Trust or the Guarantor shall be delivered
or sent by mail, telex or facsimile transmission to the address of the
Designated Trust or the Guarantor set forth in the Registration Statement:
Attention: Corporate Secretary, with a copy to Lincoln National Corporation,
000 Xxxx Xxxxx Xxxxxx, Xxxx Xxxxx, Xxxxxxx 00000-0000. Attention: Office of the
Treasurer, Facsimile Transmission No. (000) 000-0000; provided, however, that
any notice to an Underwriter pursuant to Section 7(c) hereof shall be delivered
or sent by mail, telex or facsimile transmission to such Underwriter at its
address set forth in its Underwriters' Questionnaire, or telex constituting
such Questionnaire, which address will be supplied to the Designated Trust and
the Guarantor by the Representatives upon request. Any such statements,
requests, notices or agreements shall take effect upon receipt thereof.
12. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Designated Trust and
the Guarantor and, to the extent provided in Section 7 and Section 9 hereof,
the officers and directors of the Designated Trust or the Guarantor and each
person who controls the Designated Trust, the Guarantor or any Underwriter, and
their respective heirs, executors, administrators, successors and assigns, and
no other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
13. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
14. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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15. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and 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.
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ANNEX I
PRICING AGREEMENT
To the Underwriters named in
Schedule I to the Underwriting Agreement
c/o ____________________
_________________________
_________________________
__________ _____, _____
Dear Sirs:
Lincoln National Capital ___, a statutory business trust formed under
the laws of the State of Delaware (the "Designated Trust") and Lincoln National
Corporation, an Indiana corporation (the "Guarantor"), propose, subject to the
terms and conditions stated herein and in the Underwriting Agreement, dated
__________, 1998 (the "Underwriting Agreement"), between the Guarantor on the
one hand and the Underwriters named in Schedule I to the Underwriting
Agreement, on the other hand, to issue and sell to the Underwriters named in
Schedule I hereto (the "Underwriters") the Securities specified in Schedule II
hereto (the "Designated Securities" consisting of Firm Designated Securities
and any Optional Designated Securities the Underwriters may elect to purchase).
Each of the provisions of the Underwriting Agreement 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, except that
each representation and warranty which refers to the Prospectus in Section 2 of
the Underwriting Agreement shall be deemed to be a representation or warranty
as of the date of the Underwriting Agreement in relation to the Prospectus (as
therein defined), and also a representation and warranty as of the date of this
Pricing Agreement in relation to the Prospectus as amended or supplemented
relating to the Designated Securities which are the subject of this Pricing
Agreement. Each reference to the Representatives herein and in the provisions
of the Underwriting Agreement so incorporated by reference shall be deemed to
refer to you.
Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated
to act on behalf of the Representatives and on behalf of each of the
Underwriters of the Designated Securities pursuant to Section 12 of the
Underwriting Agreement and the address of the Representatives referred to in
such Section 12 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
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Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, (a) the Designated
Trust agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Designated
Trust, at the time and place and at the purchase price to the Underwriters set
forth in Schedule II hereto, the number of Firm Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto, and (b) in the
event and to the extent that the Underwriters shall exercise the election to
purchase Optional Designated Securities, as provided below, the Designated
Trust agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Designated
Trust at the purchase price to the Underwriters set out in Schedule II hereto
that portion of the number of Optional Designated Securities as to which such
election shall have been exercised.
The Designated Trust hereby grants to each of the Underwriters the
right to purchase at their election up to the number of Optional Designated
Securities set forth opposite the name of such Underwriter in Schedule I hereto
on the terms referred to in the paragraph above for the sole purpose of
covering over-allotments in the sale of the Firm Designated Securities. Any
such election to purchase Optional Designated Securities may be exercised by
written notice from the Representatives to the Designated Trust and the
Guarantor given within a period of 10 calendar days after the date of this
Pricing Agreement, setting forth the aggregate number of Optional Designated
Securities to be purchased and the date on which such Optional Designated
Securities are to be delivered, as determined by the Representatives, but in no
event earlier than the First Time of Delivery or, unless the Representatives,
the Guarantor and the Designated Trust otherwise agree in writing, no earlier
than two or later than ten business days after the date of such notice.
If the foregoing is in accordance with your understanding, please sign
and return to us eight counterparts hereof, and upon acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the
Underwriters, the Designated Trust and the Guarantor. It is
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understood that your acceptance of this letter on behalf of each of the
Underwriters is or will be pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Guarantor for examination upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
Very truly yours,
LINCOLN NATIONAL CORPORATION
By:
-----------------------------------------
Name:
Title:
LINCOLN NATIONAL CAPITAL _____
By: Lincoln National Corporation, as Depositor
By:
-----------------------------------------
Name:
Title:
Accepted as of the date hereof:
[Name(s) of Representative(s)]
As Representatives of the Underwriters Named in Schedule I hereto
___________________________________
On behalf of each of the Underwriters named on Schedule I hereto
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SCHEDULE I
Number of
Number of Firm Maximum Optional
Designated Designated
Securities to be Securities to be
Underwriters Purchased Purchased
------------ --------- ---------
[Names of Representatives] . . . . .
[Names of Underwriters] . . . . . . .
_____________________ _______________________
Total . . . . . . . . . . . . .
===================== =======================
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SCHEDULE II
DESIGNATED TRUST:
Lincoln National Capital _________
TITLE OF DESIGNATED SECURITIES:
____% ____________________ Preferred Securities, Series ___
AGGREGATE PRINCIPAL AMOUNT:
Aggregate principal amount of Firm Designated Securities:
$___________________
Maximum aggregate principal amount of Optional Designated Securities:
$__________________
PRICE TO PUBLIC:
______% of the principal amount of the Designated Securities
PURCHASE PRICE BY UNDERWRITERS:
______% of the principal amount of the Designated Securities
UNDERWRITERS' COMPENSATION
$_____ per Designated Security
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
New York Clearing House same-day funds
ACCOUNTANTS' LETTER TO BE DELIVERED ON DATE OF PRICING AGREEMENT:
Yes.
TRUST AGREEMENT:
Amended and Restated Trust Agreement dated __________________, between the
Guarantor and the Trustees named therein
INDENTURE:
Junior Subordinated Indenture dated as of ____________________, between the
Guarantor and _________________, as Debenture Trustee (the "Indenture")
GUARANTEE:
Guarantee Agreement, dated as of _________________, between Guarantor and
Guarantee Trustee
MATURITY:
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INTEREST RATE:
_____%
INTEREST PAYMENT DATES:
EXTENSION PERIOD:
REDEMPTION PROVISIONS:
[The redemption provisions set forth in Section 402 of the Trust Agreement
shall apply to the Designated Securities.]
SINKING FUND PROVISIONS:
No sinking fund provisions.
[FIRST] TIME OF DELIVERY:
10:00 a.m., New York City time _______ ___, ____
CLOSING LOCATION:
NAMES AND ADDRESSES OF REPRESENTATIVES:
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ANNEX II
Accountants' Letter
Pursuant to Section 6(g) of the Underwriting Agreement, the
Guarantor's independent certified public accountants shall furnish letters to
the effect that:
(i) they are independent certified public accountants with
respect to the Guarantor and its subsidiaries within the meaning of
the Act and the applicable published rules and regulations thereunder;
(ii) in their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
prospective financial statements and/or pro forma financial
information) examined by them and included or incorporated by
reference in the Registration Statement or the Prospectus comply as to
form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the
related published rules and regulations thereunder; and, if reasonably
requested by the Representatives, they have made a review in
accordance with standards established by the American Institute of
Certified Public Accountants of the consolidated interim financial
statements, selected financial data, pro forma financial information,
prospective financial statements and/or condensed financial statements
derived from audited financial statements of the Guarantor for the
periods specified in such letter, as indicated in their reports
thereon, copies of which have been furnished to the representatives of
the Underwriters (the "Representatives");
(iii) they have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included in the Guarantor's
quarterly reports on Form 10-Q incorporated by reference into the
Prospectus as indicated in their reports thereon copies of which have
been separately furnished to the Representatives; and on the basis of
specified procedures including inquiries of officials of the Guarantor
who have responsibility for financial and accounting matters regarding
whether the unaudited condensed consolidated financial statements
referred to in paragraph (vi)(A)(i) below comply as to form in all
material respects with the applicable accounting requirements of the
Act and the Exchange Act and the related published rules and
regulations, nothing came to their attention that caused them to
believe that the unaudited condensed consolidated financial statements
do not comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the
related published rules and regulations;
(iv) the unaudited selected financial information with
respect to the consolidated results of operations and financial
position of the Guarantor for the five most recent fiscal years
included in the Prospectus and included or incorporated by reference
in Item 2 of
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the Guarantor's Registration Statement on Form 10 or Item 6 of the
Guarantor's Annual Report on Form 10-K for the most recent fiscal
year, as applicable, agrees with the corresponding amounts (after
restatement where applicable) in the audited consolidated financial
statements for the five such fiscal years which were included or
incorporated by reference in the Guarantor's Registration Statement on
Form 10 or the Guarantor's Annual Reports on Form 10-K for such fiscal
years, as applicable;
(v) on the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and
other information referred to below, a reading of the latest available
interim financial statements of the Guarantor and its subsidiaries,
inspection of the minute books of the Guarantor and its subsidiaries
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of
the Guarantor and its subsidiaries responsible for financial
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 condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows included
or incorporated by reference in the Guarantor's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus (if any) do not comply as to form
in all material respects with the applicable accounting requirements of the
Exchange Act as it applies to Form 10-Q and the related published rules and
regulations thereunder or are not in conformity with generally accepted
accounting principles applied on a basis substantially consistent with the
basis for the audited consolidated statements of income, consolidated balance
sheets and consolidated statements of cash flows included or incorporated by
reference in the Guarantor's Registration Statement on Form 10 or the
Guarantor's Annual Report on Form 10-K for the most recent fiscal year, as
applicable;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding items in
the unaudited consolidated financial statements from which such data and items
were derived, and any such unaudited data and items were not determined on a
basis substantially consistent with the basis for the corresponding amounts in
the audited consolidated financial statements included or incorporated by
reference in the Guarantor's Registration Statement on Form 10 or the
Guarantor's Annual Report on Form 10-K for the most recent fiscal year, as
applicable;
(C) the unaudited financial statements which were not included in
the Prospectus but from which were derived the unaudited condensed financial
statements referred to in Clause (A) and any unaudited income statement data
and balance sheet items included in the Prospectus and referred to in Clause
(B) were not determined on a basis substantially consistent with the basis for
the audited financial statements included or incorporated by reference in the
Guarantor's Registration Statement on Form 10 or the Guarantor's Annual Report
on Form 10-K for the most recent fiscal year, as applicable;
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36
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do not
comply as to form in all material respects with the applicable accounting
requirements of the Act and the published rules and regulations thereunder or
the pro forma adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated capital
stock (other than issuances of capital stock upon exercise of options and stock
appreciation rights or pursuant to existing benefit plans and upon conversions
of convertible securities which were outstanding on the date of the latest
balance sheet included or incorporated by reference in the Prospectus) or any
increase in the consolidated short-term borrowings or long-term debt of the
Guarantor and its subsidiaries or any other items specified by the
Representatives, or any decreases in total investments, total assets or any
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 Prospectus, except in each case for changes, increases or decreases
which the Prospectus discloses have occurred or may occur or which are
described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to the
specified date referred to in Clause (E) there were any decreases in
consolidated net revenues or operating profit or the total or per share amounts
of consolidated net income or other items specified by the Representatives, or
any increases in any items specified by the Representatives, in each case as
compared with the comparable period of the preceding year and with any other
period of corresponding length specified by the Representatives, except in each
case for increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(vi) in addition to the examination referred to in their
report(s) included or incorporated by reference in the Prospectus and
the limited procedures, inspection of minute books, inquiries and
other procedures referred to in paragraphs (iii) and (v) above, they
have carried out certain specified procedures, not constituting an
examination 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 Guarantor and its subsidiaries, which appear
in the Prospectus (excluding documents incorporated by reference), or
in Part II of, or in exhibits and schedules to, the Registration
Statement specified by the Representatives or in documents
incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting records of
the Guarantor and its subsidiaries and have found them to be in
agreement.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the letter
delivered on the date of the Pricing Agreement, if so delivered, for purposes
of such letter and to the Prospectus as amended or
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37
supplemented (including the documents incorporated by reference therein) in
relation to the applicable Designated Securities for purposes of the letter
delivered at the Time of Delivery for such Designated Securities.
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