The Hartford Financial Services
Group, Inc.
5.25% Senior Notes due
October 15, 2011
5.50% Senior Notes due
October 15, 2016
5.95% Senior Notes due
October 15, 2036
General Terms and
Conditions
To the
Underwriters named in
Schedule I to the applicable Pricing Agreement.
From time to time
The Hartford Financial Services Group, Inc., a Delaware corporation
(the “ Company ”), proposes to enter into one or
more Pricing Agreements in the form of Annex I hereto (each, a
“ Pricing Agreement ”) which incorporates by
reference these Underwriting Agreement General Terms and Conditions
(this “ Underwriting Agreement ”), with such
additions and deletions as the parties thereto may determine, and,
subject to the terms and conditions stated herein and therein, to
issue and sell to the firms named in Schedule I to the
applicable Pricing Agreement (such firms constituting the “
Underwriters ” with respect to such Pricing Agreement
and the securities specified therein) certain of its debt
securities (the “ Securities ”) specified in
Schedule II to such Pricing Agreement (with respect to such
Pricing Agreement, the “ Designated Securities
”).
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 indenture (the “ Indenture ”)
identified in such Pricing Agreement.
1. 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 an Underwriter
who acts without any firm being designated as its or their
representatives. The Underwriting Agreement shall not be construed
as an obligation of the Company to sell any of the Securities or as
an obligation of the Underwriters to purchase any of the
Securities. The obligation of the Company 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 Designated Securities specified
therein. Each Pricing Agreement shall specify the aggregate
principal amount of the Designated Securities, the initial public
offering price of such Designated Securities or the manner of
determining such price, 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, the principal amount 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 Indenture and the
registration statement and prospectus with respect thereto) the
terms of such Designated 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 any Pricing Agreement shall be several and
not joint.
2. The
Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration
statement on Form S-3 (File No. 333-108067), as amended, in
respect of the Designated Securities has been filed with the
Securities and Exchange Commission (the “ Commission
”). For purposes of this Agreement and the applicable Pricing
Agreement, the following terms have the specified
meanings:
“ Base
Prospectus ” means the base prospectus filed as part of
the Registration Statement, in the form in which it has most
recently been filed with the Commission on or prior to the date
hereof, relating to the Designated Securities;
“
Disclosure Package ” means, as of the Applicable Time
(as defined in the applicable Pricing Agreement), the Preliminary
Prospectus, including all documents incorporated therein by
reference, whether any such incorporated document is filed before
or after the Preliminary Prospectus, so long as the incorporated
document is filed before the Applicable Time,
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together with
each Issuer Free Writing Prospectus filed or used by the Company at
or before the Applicable Time and identified on Schedule III
to the applicable Pricing Agreement;
“Effective Date” means each effective date of
the Registration Statement pursuant to Rule 430B under the
Securities Act for purposes of liability under Section 11 of
the Securities Act of 1933, as amended (the “ Act
”) of the Company or the Underwriters;
“ Final
Term Sheet ” means each term sheet prepared pursuant to
Section 5(a) of this Agreement and substantially in the form
attached in Schedule IV of the applicable Pricing
Agreement;
“ Issuer
Free Writing Prospectus ” means each “free writing
prospectus” (as defined in Rule 405 of the Act) prepared
by or on behalf of the Company or used or referred to by the
Company in connection with the offering of the Designated
Securities, including each Final Term Sheet;
“
Preliminary Prospectus ” means the Base Prospectus, as
supplemented by the preliminary prospectus supplement specifically
relating to the Designated Securities, in the form in which it has
most recently been filed with the Commission pursuant to Rule
424(b) of the rules and regulations of the Commission under the Act
and provided to the Representatives for use by the
Underwriters;
“
Prospectus ” means the Base Prospectus, as
supplemented by the definitive prospectus supplement specifically
relating to the Designated Securities, in the form in which it is
filed with the Commission pursuant to Rule 424(b) under the Act in
accordance with Section 5(a) hereof, including any documents
incorporated by reference therein as of the date of such filing;
and
“
Registration Statement ” means the registration
statement, as amended as of the Effective Date, including the
Prospectus, all exhibits thereto (excluding the Form T-1, except
where otherwise stated) and the documents incorporated by reference
therein, ; if the Company has filed an abbreviated registration
statement to register additional Securities pursuant to Rule 462(b)
under the Act (the “ Rule 462 Registration
Statement ”), then any reference herein to the term
“ Registration Statement ” shall be deemed to
include such Rule 462 Registration Statement.
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
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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 report of the
Company filed pursuant to Sections 13(a) or 15(d) of the Exchange
Act after the date on which the Registration Statement was
originally declared effective by the Commission that is
incorporated by reference in the Registration Statement;
(b) The
Registration Statement has been declared effective; no stop order
suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission;
(c) The documents
incorporated by reference in the Disclosure Package and the
Prospectus, when they were filed with the Commission, conformed in
all material respects to the requirements of the Exchange Act and
the rules and regulations of the Commission thereunder, and none of
such documents at its time of filing 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, in
the light of the circumstances under which they were made, not
misleading; and any further documents so filed and incorporated by
reference in the Disclosure Package or Prospectus when such
documents are filed with the Commission will conform in all
material respects to the requirements of the Exchange Act 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, in the light of the circumstances under
which they were made, not misleading;
(d) The
Registration Statement, as of the Effective Date, conforms, the
Preliminary Prospectus, as of the date of the preliminary
prospectus supplement comprising a part of such Preliminary
Prospectus, conformed, and the Prospectus, as of the date of the
prospectus supplement comprising part of such Prospectus, and any
further amendments or supplements to the Registration Statement,
the Preliminary Prospectus 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; the Registration Statement as of the Effective Date,
did not contain an untrue statement of a material fact or omit to
state
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a material fact
required to be stated therein or necessary to make the statements
therein not misleading; the Disclosure Package, as of the
Applicable Time, will not, and the Prospectus, as of the date of
the prospectus supplement comprising part of such Prospectus, 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, in the light of the circumstances under
which they were made, not misleading; provided ,
however , that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by
an Underwriter of Designated Securities through the Representatives
expressly for use in the Disclosure Package or the Prospectus, as
applicable;
(e) The Company is
a well-known seasoned issuer (as defined in Rule 405 under the
Act) and is not an “ineligible issuer” pursuant to
Rules 164, 405 and 433 under the Act;
(f) Except as
described in or contemplated by the Registration Statement, the
Disclosure Package and the Prospectus, there has not been any
material adverse change in, or any adverse development which
materially affects, the business, properties, financial condition
or results of operations of the Company and its subsidiaries taken
as a whole from the dates as of which information is given in the
Registration Statement, the Disclosure Package and the Prospectus;
and, since the respective dates as of which information is given in
the Registration Statement, the Disclosure Package and the
Prospectus, there has not been any change in the consolidated
capital stock (other than issuances of capital stock upon the
exercise of options and stock appreciation rights, upon earn outs
of performance shares, upon conversions of convertible securities
and upon exercises of stock purchase contracts, in each case which
were outstanding on the date of the latest balance sheet included
or incorporated by reference in the Disclosure Package and the
Prospectus) or any material increase in the consolidated long-term
debt of the Company and its subsidiaries or any material adverse
change, or any development involving a prospective material adverse
change, in or affecting the business affairs, management, financial
position, and stockholders’ equity or results of operations
of the Company and its subsidiaries taken as a whole, otherwise
than as set forth or contemplated in the Disclosure Package and the
Prospectus;
(g) The Company
and each subsidiary of the Company which meets the definition of a
significant subsidiary as defined in Regulation S-X
(collectively referred to herein as the “ Significant
Subsidiaries ” and individually as a “
Significant Subsidiary ”) has been duly
incorporated
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and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with full corporate power and
authority to own its properties and conduct its business; to the
Company’s knowledge, all of the issued shares of capital
stock of each Significant Subsidiary are owned, directly or
indirectly through wholly-owned subsidiaries, by the Company free
and clear of all material liens, encumbrances, equities or
claims;
(h)
The Company’s authorized share capital is as set forth in the
Disclosure Package and the Prospectus, and all of the issued shares
of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and
non-assessable;
(i)
The Designated Securities have been duly and validly authorized,
and, when the Designated Securities are issued and delivered
pursuant to the Pricing Agreement with respect to such Designated
Securities against payment therefor, such Designated Securities
will have been duly executed, authenticated, issued and delivered
and will constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture, which
will be substantially in the form filed as an exhibit to the
Registration Statement; the Indenture has been duly authorized and
duly qualified under the Trust Indenture Act and, at the Time of
Delivery for such Designated Securities (as defined in
Section 4 hereof), the Indenture will constitute a valid and
legally binding instrument, enforceable in accordance with its
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; and the Indenture conforms, and the Designated
Securities will conform, to the descriptions thereof contained in
the Disclosure Package and the Prospectus;
(j)
The issue and sale of the Designated Securities and the compliance
by the Company with all the provisions of the Securities, the
Indenture, and any Pricing Agreement with respect to the Designated
Securities and the consummation of the transactions therein
contemplated have not conflicted with or resulted in a breach or
violation of any of the terms or provisions of, or constituted a
default under, and will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company is
a party or by which the Company is bound or to which any of the
property or assets of the Company is subject, except for such
breaches, conflicts, violations or defaults which would not have,
individually or in the aggregate with such other breaches,
conflicts, violations and defaults, a material adverse effect on
the financial position, stockholders’ equity or
6
results of
operations of the Company and its subsidiaries, considered as a
whole, and which will not affect the validity, performance or
consummation of the transactions contemplated by the Indenture or
the Pricing Agreement with respect to the Designated Securities,
and have not resulted and will not result in any violation of the
provisions of the Certificate of Incorporation or By-laws of the
Company or any statute, rule or regulation, or any order or decree
of any court or regulatory authority or other governmental agency
or body having jurisdiction over the Company or any of its
properties; and no consent, approval, authorization, license,
order, registration or qualification of or with any such court,
regulatory authority or other governmental agency or body is
required for the issue and sale of the Designated Securities or the
consummation by the Company of the transactions contemplated by the
Pricing Agreement or the Indenture with respect to the Designated
Securities, except those which have been, or will have been prior
to the Time of Delivery, obtained under the Act and the Exchange
Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under state or foreign securities
or state insurance securities laws in connection with the purchase
and distribution of the Designated Securities by the Underwriters,
and except for such consents, approvals, authorizations, licenses,
orders, registrations or qualifications which the failure to make,
obtain or comply with would not have, individually or in the
aggregate with such other failures, a material adverse effect on
the financial position, stockholders’ equity or results of
operations of the Company and its subsidiaries, considered as a
whole, and which will not affect the validity, performance or
consummation of the transactions contemplated by the Indenture or
the Pricing Agreement with respect to the Designated
Securities;
(k)
Except as described in the Disclosure Package and the Prospectus,
there is no action, suit or proceeding pending, nor to the
knowledge of the Company, is there any action, suit or proceeding
threatened, which might reasonably be expected to result in a
material adverse change in the financial condition, results of
operations or business of the Company and its subsidiaries
considered as a whole or which is required to be disclosed in the
Registration Statement;
(l)
This Underwriting Agreement and the Pricing Agreement with respect
to the Designated Securities have been duly authorized, executed
and delivered by the Company;
(m)
The financial statements included in the Disclosure Package, the
Registration Statement and the Prospectus present fairly the
financial position of the Company and its consolidated subsidiaries
as of the dates shown and their results of operations and cash
flows for the
7
periods shown,
and, except as otherwise disclosed in the Disclosure Package and
the Prospectus as amended or supplemented, such financial
statements have been prepared in conformity with generally accepted
accounting principles in the United States applied on a consistent
basis; any schedules included in the Registration Statement present
fairly the information required to be stated therein;
(n) There are no
contracts or other documents of a character required to be filed as
an exhibit to the Registration Statement or required to be
described in the Registration Statement, the Disclosure Package or
the Prospectus which are not filed or described as
required;
(o) The Company
and its consolidated subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurances
that (1) transactions are executed in accordance with
management’s general or specific authorization; (2)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with accounting principles
generally accepted in the United States (“ GAAP
”) and to maintain accountability for assets; (3) access
to assets is permitted only in accordance with management’s
general or specific authorization; and (4) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect
to any differences. Except as described in the Disclosure Package
and the Prospectus, since the end of the Company’s most
recent audited fiscal year, there has been (i) no material
weakness identified by management, or by the Company’s
auditors and communicated to management, in the Company’s
internal control over financial reporting (whether or not
remediated) and (ii) no change in the Company’s internal
control over financial reporting that has materially affected, or
is reasonably likely to materially affect, the Company’s
internal control over financial reporting; and
(p) The Company
and its consolidated subsidiaries employ disclosure controls and
other procedures that are designed to ensure that information
required to be disclosed by the Company in the reports that it
files or submits under the Exchange Act is recorded, processed,
summarized and reported, within the time periods specified in the
Commission’s rules and forms, and is accumulated and
communicated to the Company’s management, including its
principal executive and principal financial officer or officers, as
appropriate, to allow timely decisions regarding
disclosure.
3. Upon the
execution of the Pricing Agreement applicable to the Designated
Securities and authorization by the Representatives of the release
of the Designated Securities, the several Underwriters propose to
offer the
8
Designated
Securities for sale upon the terms and conditions set forth in the
Disclosure Package and the Prospectus as amended or
supplemented.
4. Designated
Securities to be purchased by each Underwriter pursuant to the
Pricing Agreement relating thereto, in such authorized
denominations and registered in such names as the Representatives
may request upon at least forty-eight hours’ prior notice to
the Company, shall be delivered by or on behalf of the Company to
the Representatives for the account of each such Underwriter,
against payment by such Underwriter or on its behalf of the
purchase price therefor by wire transfer of Federal (same-day)
funds to the account specified by the Company to the
Representatives at least forty-eight hours in advance as specified
in such Pricing Agreement, with respect to the Designated
Securities, all in the manner and at the place, time and date
specified in such Pricing Agreement or at such other place, time
and date as the Representatives and the Company may agree upon in
writing, such time and date being herein called the “ Time
of Delivery ”.
5. The
Company agrees with each of the Underwriters of the Designated
Securities:
(a) To prepare
each Final Term Sheet, substantially in the form of
Schedule IV to the applicable Pricing Agreement and approved
by the Representatives, and file each Final Term Sheet pursuant to
Rule 433(d) of the Act within the time period prescribed by such
Rule; to prepare the Prospectus as amended or supplemented in
relation to the applicable Designated Securities in a form approved
by the Representatives and to file such Prospectus and the
Preliminary Prospectus pursuant to Rule 424(b) under the Act within
the time period prescribed by such Rule; 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 Designated Securities and prior to the
Time of Delivery for such Designated Securities which shall be
disapproved by the Representatives for such Designated 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 Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act for so long as the delivery of a prospectus is
required in connection with the offering or sale of such Designated
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 Preliminary
Prospectus or the Prospectus or any amended Prospectus has been
filed with the
9
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
Designated Securities or any Issuer Free Writing Prospectus, of the
suspension of the qualification of such Designated 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, any Preliminary Prospectus, any Issuer Free
Writing Prospectus or the 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 Designated Securities or suspending any such
qualification, to promptly use its best efforts to obtain the
withdrawal of such order;
(b) Promptly from
time to time to take such action as the Representatives may
reasonably request to qualify such Designated Securities for
offering and sale under the insurance and 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 Designated Securities, provided
that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction; and provided further that
the Company shall not be required to qualify the Designated
Securities in any jurisdiction if such qualification would result
in any obligation on the part of the Company to make filings with
any governmental entity in such jurisdiction after the completion
of the offering;
(c) Prior to
12:00 p.m., New York City time, on the business day next
succeeding the date of the Pricing Agreement applicable to the
Designated Securities and from time to time, to furnish the
Underwriters such number of conformed copies of the Registration
Statement, as originally filed and each amendment thereto
(excluding exhibits other than this Agreement), the Preliminary
Prospectus, any Final Term Sheet and any other Issuer Free Writing
Prospectus, the Prospectus and all amendments and supplements to
any of such documents (including any document filed under the
Exchange Act and deemed to be incorporated by reference in the
Registration Statement, any Preliminary Prospectus or the
Prospectus), in each case as soon as available and in such
quantities as the Representatives may from time to time reasonably
request;
(d) During the
period in which the Prospectus relating to the Securities (or in
lieu thereof, the notice referred to in Rule 173(a) of the Act) is
required to be delivered under the Act, the Company will
comply
10
with all
requirements imposed upon it by the Act, as from time to time in
force, so far as is necessary to permit the continuance of sales of
or dealings in the Securities as contemplated by the provisions of
this Agreement and by the Disclosure Package and the Prospectus. If
during such period any event occurs as a result of which the
Disclosure Package or the Prospectus as then amended or
supplemented would include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, or if during such period it is
necessary to amend the Registration Statement or amend or
supplement the Disclosure Package or the Prospectus or file any
document to comply with the Act, the Company will promptly notify
the Representatives and will, subject to Section 5(a) hereof, amend
the Registration Statement, amend or supplement the Disclosure
Package or the Prospectus, as the case may be, or file any document
(in each case, at the expense of the Company) so as to correct such
statement or omission or to effect such compliance, and will
furnish without charge to each Underwriter as many written and
electronic copies of any such amendment or supplement as the
Representatives may from time to time reasonably
request;
(e) To make
generally available to its securityholders as soon as practicable,
but in any event not later than eighteen months after the effective
date of the Registration Statement (as defined in Rule 158(c) under
the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act
and the rules and regulations of the Commission thereunder
(including, at the option of the Company,
Rule 158);
(f) During the
period beginning from the date of the Pricing Agreement for the
Designated Securities and continuing to and including the date
90 days after the date of the Prospectus Supplement, not to
offer, sell, contract to sell or otherwise dispose of, except as
provided hereunder, any securities of the Company which are
substantially similar to the Designated Securities, without the
prior written consent of the Representatives; and
(g) If the Company
elects to rely upon Rule 462(b), the Company shall file a Rule
462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date
of this Agreement, and the Company shall either (i) by the
time of filing pay to the Commission the filing fee for the Rule
462(b) Registration Statement or (ii) at the time of filing submit
with the 462(b) Registration Statement the certification required
under Rule 111(b) under the Act.
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6. Free Writing
Prospectuses.
(a) The Company
represents and warrants to, and agrees with, each Underwriter that
(i) the Company has not made, and will not, make any offer
relating to the Designated Securities that would constitute an
Issuer Free Writing Prospectus without the prior consent of the
Representatives, such consent not to be unreasonably withheld
(which consent being deemed to have been given with respect to
(A) each Final Term Sheet prepared and filed pursuant to
Section 5(a) hereof and (B) any other Issuer Free Writing
Prospectus identified on Schedule III to the applicable
Pricing Agreement); (ii) each Issuer Free Writing Prospectus
conformed or will conform in all material respects to the
requirements of the Act on the date of first use, and the Company
has complied and will comply with any filing requirements
applicable to such Issuer Free Writing Prospectus pursuant to
Rule 433 under the Act; (iii) each Issuer Free Writing
Prospectus will not, as of its issue date and, to the extent not
amended or superceded, at all subsequent times through completion
of the offering, include any information that conflicts with the
information contained in the Registration Statement, the
Preliminary Prospectus and the Prospectus; and (iv) each
Issuer Free Writing Prospectus, when considered together with the
information contained in the Preliminary Prospectus and any other
Issuer Free Writing Prospectus issued prior thereto or as of its
issue date, will not, as of the Applicable Time, contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, provided , however , that this
representation and warranty shall not apply to any statements or
omissions in an Issuer Free Writing Prospectus made in reliance
upon and in conformity with information furnished to the Company by
an Underwriter through the Representatives for use
therein.
(b) Each
Underwriter represents and warrants to, and agrees with, the
Company and each other Underwriter that it has not made, and will
not make any offer relating to the Securities that would constitute
a “free writing prospectus” (as defined in
Rule 405 under the Act), without the prior consent of the
Company and the Representatives, provided however , that
prior to the preparation of the Final Term Sheet in accordance with
Section 5(a) of this Agreement, the Underwriters are authorized to
use a free writing prospectus that contains only information
describing the preliminary terms of the Designated Securities or
their offering.
(c) The Company
agrees that if at any time following issuance of an Issuer Free
Writing Prospectus any event occurred or occurs as a
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result of which
such Issuer Free Writing Prospectus would conflict with the
information in the Registration Statement, the Preliminary
Prospectus or the Prospectus or would include any 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, not misleading, the
Company will give prompt notice thereof to the Representatives and,
if requested by the Representatives, will prepare and furnish
without charge to each Underwriter an Issuer Free Writing
Prospectus or other document which will correct such conflict,
untrue statement or omission.
7. The
Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the
fees, disbursements and expenses of the Company’s counsel and
accountants in connection with the registration of the Designated
Securities under the Act and all other expenses in connection with
the preparation, printing and filing of the Registration Statement,
any Preliminary Prospectus, any Issuer Free Writing Prospectus, the
Disclosure Package and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of
printing or producing any Agreement among Underwriters, any Pricing
Agreement, any Indenture, any Blue Sky or similar investment
surveys or memoranda, closing documents (including compilations
thereof) and any other documents in connection with the offering,
purchase, sale and delivery of the Designated Securities;
(iii) all expenses in connection with the qualification of the
Designated Securities for offering and sale under state securities
laws as provided in Section 5(b) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with
such qualification and in connection with the Blue Sky survey(s);
(iv) the cost of preparing certificates for the Designated
Securities; (v) the fees charged by securities rating services
for rating the Securities; (vi) any filing fees incident to
any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Designated
Securities; (vii) the fees and expenses of any Trustee and any
agent of any Trustee and the fees and disbursements of any counsel
for any Trustee in connection with any Indenture and the Designated
Securities; and (viii) all other costs and expenses incident
to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section. It is
understood, however, that, except as provided in this Section, and
Sections 9 and 12 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 Designated Securities by
them, and any advertising expenses connected with any offers they
may make.
8. The
obligations of the Underwriters of any Designated Securities under
the Pricing Agreement applicable to such Designated Securities
shall be subject, in the discretion of the Representatives, to the
condition that all
13
representations
and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such
Designated Securities are, at and as of the Time of Delivery for
such Designated Securities, true and correct, the condition that
the Company shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional
conditions:
(a) The
Preliminary Prospectus and the Prospectus shall have been filed
with the Commission in a timely fashion in accordance with Section
5(a) hereof; all filings (including, without limitation, the filing
of each Final Term Sheet) required by Rule 424(b) or Rule 433
of the Act shall have been made within the time periods prescribed
by such rules; the Rule 462(b) Registration Statement, if any,
shall have become effective by 10:00 p.m., Washington, D.C.
time, on the date of this Agreement; no stop order suspending the
effectiveness of the Registration Statement or any amendment or
supplement thereto or preventing or suspending the use of any
Preliminary Prospectus, any Issuer Free Writing Prospectus or the
Prospectus 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;
(b) No Underwriter
shall have been advised by the Company, or shall have discovered
and disclosed to the Company, that the Registration Statement, as
of the Effective Date, contained an untrue statement of a material
fact of omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading
or that the Disclosure Package as of the Applicable Time or the
Prospectus as of the date of the prospectus supplement comprising
part of such Prospectus contained or contains an untrue statement
of a material fact or omitted or omits to state a material fact
which is required to be stated therein or is necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, in any case in the judgment of the
Representatives after consultation with counsel to the
Underwriters;
(c) Davis Polk
& Wardwell, counsel for the Underwriters, shall have furnished
to the Representatives such opinion or opinions, dated the Time of
Delivery for such Designated Securities, with respect to the
Pricing Agreement applicable to the Designated Securities, the
validity of the Designated Securities being delivered at such Time
of Delivery, the Indenture, the Registration Statement, the
Disclosure Package, the Prospectus and such other related matters
as the Representatives may reasonably request, and such counsel
shall have received such papers and information as they may
reasonably request to enable them to pass upon such
matters;
14
(d) Debevoise
& Plimpton LLP, counsel for the Company, shall have furnished
to the Company (with a statement authorizing you to rely thereon)
their written opinion dated the Time of Delivery for such
Designated Securities, in form and substance satisfactory to you,
to the effect that:
(i) The Designated
Securities have been duly authorized, and when executed by the
Company and authenticated by the Trustee in accordance with the
provisions of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement and the
Pricing Agreement, will constitute valid and legally binding
obligations of the Company entitled to the benefits
provide
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