(as defined in Section 3 hereof); and (iii) is effective under the Securities Act.  Copies of such Initial Registration Statement and any amendment thereto (excluding exhibits to such Initial Registration Statement but including all documents incorporated by reference in each prospectus contained therein) have been delivered (or made available at any publicly accessible website maintained by the Commission) by the Company to the Representatives; and no other document with respect to such Initial Registration Statement or any such document incorporated by reference therein has heretofore been filed or transmitted for filing with the Commission.  For purposes of this Agreement,

 

“APPLICABLE TIME” means 2:39 P.M. (New York City time) on the date of this Agreement;

 

“BASE PROSPECTUS” means the base prospectus to be used in connection with offerings of debt securities, warrants, purchase contracts, units, preferred stock, depositary shares and common stock of the Company on a continuous or delayed basis and filed as part of the Registration Statement, in the form in which it has most recently been amended on or prior to the date hereof, relating to the Notes;

 

“DISCLOSURE PACKAGE” means, as of the Applicable Time, the most recent Preliminary Prospectus, together with each Issuer Free Writing Prospectus identified on Schedule II hereto;

 

“EFFECTIVE DATE” means the date as of which any part of the Registration Statement or any post-effective amendment thereto relating to the Notes became, or is deemed to have become, effective under the Securities Act in accordance with the Rules and Regulations (including any deemed amendment pursuant to Rule 430B);

 

“ISSUER FREE WRITING PROSPECTUS” means each “free writing prospectus” (as such term is defined in Rule 405 under the Securities Act), but which does not include communications not deemed a prospectus pursuant to Rule 134 of the Securities Act and historical issuer information meeting the requirements of Rule 433(e)(2) of the Securities Act, prepared by or on behalf of the Company or used or referred to by the Company in connection with the offering of the Notes, including the final term sheet prepared pursuant to Section 4(a) hereof and attached to this Agreement in Schedule II hereto (the “FINAL TERM SHEET”);

 

“PRELIMINARY PROSPECTUS” means any preliminary prospectus relating to the Notes, including the Base Prospectus and any preliminary prospectus supplement thereto, included in the Registration Statement or filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations and provided to the Representatives for use by the Underwriters;

 

“PROSPECTUS” means the final prospectus relating to the Notes, including the Base Prospectus and any final prospectus supplement thereto relating to the Notes, as filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations and provided to the Representatives for use by the Underwriters; and

 

“REGISTRATION STATEMENT” means, collectively, the various parts of the Initial Registration Statement, including all exhibits thereto, each as amended as of the Effective

 

2

 

Date for such part, including any Preliminary Prospectus or the Prospectus and all exhibits to such registration statement.

 

Any reference to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents incorporated by reference therein pursuant to Form S-3 under the Securities Act as of the date of such Preliminary Prospectus or the Prospectus, as the case may be.  Any reference to the “MOST RECENT PRELIMINARY PROSPECTUS” shall be deemed to refer to the latest Preliminary Prospectus included in the Registration Statement or filed pursuant to Rule 424(b) prior to or on the date hereof (including, for purposes hereof, any documents incorporated by reference therein prior to or on the date hereof).  Any reference to any amendment or supplement to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any document filed under the Securities Exchange Act of 1934, as amended (the “EXCHANGE ACT”), after the date of such Preliminary Prospectus or the Prospectus, as the case may be, and incorporated by reference in such Preliminary Prospectus or the Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to include any annual report of the Company on Form 10-K filed with the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act after the Effective Date that is incorporated by reference in the Registration Statement.

 

(b)           No stop order suspending the effectiveness of the Registration Statement has been issued; no proceeding for that purpose has been initiated or threatened by the Commission; no notice of objection of the Commission to the form of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company; and no order preventing or suspending the use of any Preliminary Prospectus or any Issuer Free Writing Prospectus has been issued by the Commission.

 

(c)           The Registration Statement conformed in all material respects on the Effective Date, and any amendment to the Registration Statement filed after the date hereof will conform in all material respects when filed, to the requirements of the Securities Act, the Trust Indenture Act of 1939, as amended (the “TRUST INDENTURE ACT”), and the Rules and Regulations.  The Preliminary Prospectus as of the date of its filing with the Commission conformed, and the Prospectus as of the date of its filing with the Commission and as of the Closing Date will conform, in all material respects, to the requirements of the Securities Act, the Trust Indenture Act and the Rules and Regulations.

 

(d)           The Registration Statement did not, as of the Effective Date, 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 that no representation or warranty is made as to information contained in or omitted from the Registration Statement in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 12, or with respect to any Statement of Eligibility (Form T-1) under the Trust Indenture Act filed as an exhibit thereto.

 

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(e)           Neither the Disclosure Package, nor the Ameriprise Financial Senior Notes Offering Road Show Presentation, dated as of June 3, 2009 (the “ROAD SHOW”), when considered together with the Disclosure Package, did, as of the Applicable Time, or will, as of the Closing Date, contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; PROVIDED that no representation or warranty is made as to information contained in or omitted from the Registration Statement in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 12, or with respect to any Statement of Eligibility (Form T-1) under the Trust Indenture Act filed as an exhibit thereto.

 

(f)            The Prospectus and any amendment or supplement thereto did not, as of its date, and will not, as of the Closing Date, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; PROVIDED, that no representation or warranty is made as to information contained in or omitted from the Prospectus in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 12, or with respect to any Statement of Eligibility (Form T-1) under the Trust Indenture Act filed as an exhibit thereto.

 

(g)           The documents incorporated by reference into the Registration Statement, the most recent Preliminary Prospectus and the Prospectus, at the time they were or are filed with the Commission, conform or will conform, as the case may be, in all material respects with the applicable requirements of the Securities Act, the Trust Indenture Act, the Rules and Regulations and the Exchange Act and the rules and regulations adopted by the Commission thereunder, and did not or will not, as the case may be, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.

 

(h)           The Company has been, since the initial filing of the Initial Registration Statement, and continues to be a “well-known seasoned issuer” and has not been, since the initial filing of the Initial Registration Statement, and is not, an “ineligible issuer” (as such terms are defined in Rule 405 under the Securities Act).

 

(i)            The financial statements (including the related notes and supporting schedules) included or incorporated by reference in the Registration Statement, the Disclosure Package and Prospectus comply in all material respects with the applicable requirements of the Securities Act, the Rules and Regulations and the Exchange Act, and the rules and regulations adopted by the Commission thereunder, as applicable, and said financial statements have been prepared in accordance with generally accepted principles of accounting, applied on a consistent basis throughout the periods involved (except for changes in accounting principles or the application thereof with which Ernst & Young LLP or another independent registered public accounting firm shall have concurred) and fairly present the financial condition, results of operations, changes in shareholders’ equity and cash flows of the entities purported to be shown thereby at the dates and for the periods indicated and therein specified.  Ernst & Young LLP,

 

4

 

who examined such financial statements, as set forth in its reports included or incorporated by reference in the Registration Statement, the Disclosure Package and Prospectus, is an independent registered public accounting firm within the meaning of the Securities Act and the Rules and Regulations.  The unaudited consolidated financial statements of the Company, included or incorporated by reference in the Registration Statement, the Disclosure Package and Prospectus and the related notes are true, complete and correct, subject to normally recurring changes resulting from year-end audit adjustments.

 

(j)            The Company and each of its Significant Subsidiaries (as defined in Exhibit A hereto) have been duly organized, are validly existing and in good standing under the laws of their respective jurisdictions of organization, are duly qualified to do business and in good standing as foreign organizations in each jurisdiction in which their respective ownership of property or the conduct of their respective businesses requires such qualification (except where the failure so to qualify would not, individually or in the aggregate, have a material adverse effect on the condition (financial or other), results of operations, properties, business or prospects of the Company and its subsidiaries (the “SUBSIDIARIES”) taken as a whole (a “MATERIAL ADVERSE EFFECT”)), and have the organizational power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged.

 

(k)           Since the date as of which information is given in the most recent Preliminary Prospectus, except as described in the most recent Preliminary Prospectus and the Prospectus, there has not been any material adverse change in, or adverse development which, individually or in the aggregate, has had or would have a Material Adverse Effect.

 

(l)            The Company has an authorized capitalization as set forth in the Registration Statement, the Disclosure Package and Prospectus under the heading “Capitalization” and all the outstanding shares of capital stock or other equity interests of each Significant Subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly or indirectly by the Company, free and clear of any lien, charge, encumbrance, security interest, restriction on voting or transfer or any other claim of any third party, other than the limitations on liens set forth in the Indenture, dated as of October 5, 2005, between the Company and U.S. Bank National Association, as trustee, and in that Credit Agreement, dated as of September 30, 2005, among the Company and the lenders listed therein.

 

(m)          The Company has full right, power and authority to execute and deliver this Agreement, the Notes, the Indenture and any other material agreement to be entered into in conjunction with the offering of the Notes (collectively, the “TRANSACTION DOCUMENTS”) and to perform its obligations hereunder and thereunder; and all action required to be taken by the Company for the due and proper authorization, execution and delivery of each of the Transaction Documents and the consummation of the transactions contemplated thereby has been duly and validly taken.

 

(n)           Neither (i) the execution or delivery of the Transaction Documents by the Company, (ii) the consummation of the transactions contemplated thereby, nor (iii) compliance by the Company with all of the provisions of the Transaction Documents, will, in each case (i), (ii) or (iii), (A) conflict with or result in a breach or violation of, or constitute a default under the

 

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certificate of incorporation, by-laws, partnership agreement or other governing documents of the Company or any of its Significant Subsidiaries, (B) conflict with or result in a breach or violation of, or constitute a default under any agreement, indenture or other instrument to which the Company or any of its Significant Subsidiaries is a party or by which any of them is bound, or to which any of their properties is subject, (C) violate any law, rule, administrative regulation or decree of any court, or any governmental agency or body having jurisdiction over the Company, its Significant Subsidiaries or any of their respective properties, or (D) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or any of its Significant Subsidiaries, except with respect to (B), (C) and (D), for conflicts, breaches, violations, defaults, liens, charges or encumbrances that would not, individually or in the aggregate, have a Material Adverse Effect.

 

(o)           Except for permits, consents, approvals and similar authorizations required under the securities or “Blue Sky” laws of certain jurisdictions, and except for such permits, consents, approvals and authorizations which have been obtained, no permit, consent, approval, authorization or order of any court, governmental agency or body or financial institution is required in connection with the execution, delivery and performance by the Company of each of the Transaction Documents, the issuance and sale of the Notes and compliance by the Company with the terms thereof and the consummation of the transactions contemplated by the Transaction Documents.

 

(p)           This Agreement has been duly authorized, executed and delivered by the Company and constitutes the valid and binding agreement of the Company, and is enforceable against the Company in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization or similar laws relating to or affecting creditors’ rights generally and by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law).

 

(q)           None of the Company or any of its Significant Subsidiaries (i) is in violation of its certificate of incorporation or bylaws or other governing documents, (ii) is in default and no event has occurred which, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any agreement, indenture or other instrument to which it is a party or by which it is bound or to which any of its properties is subject, except for any such defaults that would not, individually or in the aggregate, have a Material Adverse Effect, or (iii) is in violation of any law, ordinance, governmental rule, regulation or court decree to which it or its property may be subject, except for any such violations that would not, individually or in the aggregate, have a Material Adverse Effect.

 

(r)            The Indenture has been duly and validly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization or other similar laws relating to or affecting creditors’ rights generally and by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law).  The Indenture (i) has been duly qualified under the Trust Indenture Act, (ii) complies as to form with the requirements of the

 

6

 

Trust Indenture Act and (iii) conforms to the description thereof in the Registration Statement, the most recent Preliminary Prospectus and the Prospectus.

 

(s)           The Notes have been duly and validly authorized by the Company for issuance and sale to the Underwriters pursuant to this Agreement and, when executed by the Company and authenticated by the Trustee in accordance with the Indenture and delivered to the Underwriters against payment therefor in accordance with the terms hereof, will have been validly issued and delivered, free of any preemptive or similar rights to subscribe to or purchase the same arising by operation of law or under the charter or by-laws of the Company or otherwise, and will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture and enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other similar laws relating to or affecting the enforcement of creditors’ rights generally and by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law), and the Notes conform, or will conform, to the description thereof in the Registration Statement, the Disclosure Package and the Prospectus.  Neither the filing of the Registration Statement nor the offering or sale of the Notes as contemplated by this Agreement gives rise to any rights, other than those which have been duly waived or satisfied, for or relating to the registration of any securities of the Company.

 

(t)            Each Transaction Document conforms in all material respects to the description thereof contained in the Registration Statement, the Disclosure Package and the Prospectus.

 

(u)           There is no litigation or legal or governmental proceeding to which the Company or any of its Subsidiaries is a party or to which any property of the Company or any of its Subsidiaries is subject or which is pending or, to the knowledge of the Company, threatened against the Company or any of its Subsidiaries that could, individually or in the aggregate, result in a Material Adverse Effect or which is required to be disclosed in the most recent Preliminary Prospectus and the Prospectus and is not disclosed.

 

(v)           Neither the Company nor any of its Subsidiaries has taken, directly or indirectly, any action designed to cause or result in, or which might reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Notes to facilitate the sale or resale of the Notes.

 

(w)          The Company is not, nor after giving effect to the offering of the Notes and the application of the proceeds therefrom as described under “Use of Proceeds” in each of the most recent Preliminary Prospectus and the Prospectus will be, an “investment company” or subject to regulation as an “investment company” within the meaning of the Investment Company Act of 1940, as amended (the “1940 ACT”).

 

(x)            There is and has been no failure on the part of the Company or any of the Company’s directors or officers, in their capacities as such, to comply with the provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith.

 

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(y)           The Company and, where applicable, its Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect thereto.

 

(z)            The Company and, where applicable, its Subsidiaries maintain disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act and the rules and regulations adopted by the Commission thereunder; such disclosure controls and procedures have been designed to ensure that material information relating to the Company and its Subsidiaries is made known to the Company’s (and, where applicable, its Subsidiaries’) principal executive officer and principal financial officer by others within those entities; and such disclosure controls and procedures are effective in (x) providing reasonable assurance that material information required to be disclosed by the Company (and, where applicable, its Subsidiaries) in the reports that the Company (and, where applicable, its Subsidiaries) is required to file and submit under the Exchange Act is recorded, processed, summarized and reported as and when required, and providing reasonable assurance that material information required to be disclosed by the Company (and, where applicable, its Subsidiaries) in the reports that it (or they) files or submits under the Exchange Act is accumulated and communicated to management, including the Company’s or, where applicable, its Subsidiaries’ principal executive officer and principal financial officer, as appropriate, to allow timely decisions regarding required disclosure.  The Company and its Subsidiaries have carried out evaluations of the effectiveness of their disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act.

 

(aa)         The Company possesses all licenses, certificates, permits and other authorizations issued by the appropriate national and local U.S. federal and state regulatory authorities necessary to conduct its businesses, except to the extent that the failure to possess any such licenses, permits or other authorizations would not have a Material Adverse Effect, and the Company has not received any notice of proceedings relating to the revocation or modification of any such license, certificate, permit or other authorization that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect, except as set forth in or as contemplated by the most recent Preliminary Prospectus or the Prospectus.

 

(bb)         No relationship, direct or indirect, exists between or among the Company or any of its Subsidiaries, on the one hand, and the directors, officers, stockholders, customers or suppliers of the Company or any of its Subsidiaries, on the other, that is required by the Securities Act to be described in the Registration Statement and the Prospectus and that is not so described in such documents and in the Disclosure Package.

 

(cc)         The Company and its Subsidiaries have filed all tax returns required to be filed through the date hereof and timely paid all federal, state, local and foreign taxes reflected on such returns; and except as otherwise disclosed in the Registration Statement, the Disclosure

 

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Package and the Prospectus, there is no material tax deficiency that has been, or could reasonably be expected to be, asserted against the Company or any of its Subsidiaries or any of their respective properties or assets, except for any such deficiency subject to good faith contest for which adequate provision has been made.

 

(dd)         Neither the Company nor any of its Subsidiaries has violated any foreign, federal, state or local law or regulation relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants or any provisions of the Employee Retirement Income Security Act of 1974, as amended, except for such violations which would not have a Material Adverse Effect.

 

(ee)         The Company and its Subsidiaries have insurance covering their respective properties, operations, personnel and businesses, including business interruption insurance, which insurance is in amounts and insures against such losses and risks as are adequate to protect the Company and its Subsidiaries and their respective businesses; and neither the Company nor any of its Subsidiaries has (i) received notice from any insurer or agent of such insurer that capital improvements or other expenditures are required or necessary to be made in order to continue such insurance or (ii) any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage at reasonable cost from similar insurers as may be necessary to continue its business.

 

(ff)           Neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee or other person associated with or acting on behalf of the Company or any of its Subsidiaries has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment.

 

(gg)         The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “MONEY LAUNDERING LAWS”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its Subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.

 

(hh)         None of the Company, any of its Subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee or Affiliate of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”); and the Company will not directly or indirectly use the proceeds of the offering of the Notes hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other

 

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person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.

 

(ii)           The Notes constitute “senior indebtedness” as such term is defined in any indenture and any agreement governing any outstanding subordinated indebtedness of the Company.

 

(jj)           Except as described in the most recent Preliminary Prospectus and the Prospectus, no Significant Subsidiary of the Company is currently prohibited, directly or indirectly, under any agreement or other instrument to which it is a party or is subject, from paying any dividends to the Company, from making any other distribution on such Significant Subsidiary’s capital stock, from repaying to the Company any loans or advances to such Significant Subsidiary from the Company or from transferring any of such Subsidiary’s properties or assets to the Company or any other Significant Subsidiary of the Company.

 

(kk)         No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act) contained in the Registration Statement, the Disclosure Package and the Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.

 

(ll)           Nothing has come to the attention of the Company that has caused the Company to believe that the statistical and market-related data included in the Registration Statement, the Disclosure Package and the Prospectus is not based on or derived from sources that are reliable and accurate in all material respects.

 

(mm)       Each of the Company and its Subsidiaries that is required to be organized or licensed as an insurance company in its jurisdiction of incorporation (including jurisdictions outside of the United States) (each an “INSURANCE SUBSIDIARY”) has all necessary consents, licenses, authorizations, approvals, exemptions, orders, certificates and permits (collectively, the “CONSENTS”) of and from, and has made all filings and declarations (collectively, the “FILINGS”) with, all insurance regulatory authorities, all Federal, state, local and other governmental authorities (including, without limitation, the Minnesota Department of Commerce (Insurance Division), the Wisconsin Office of the Commissioner of Insurance and the New York Insurance Department), all self-regulatory organizations and all courts and other tribunals, necessary to own, lease, license and use its properties and assets and to conduct its business, except where the failure to have such Consents or to make such Filings would not, individually or in the aggregate, have a Material Adverse Effect; all such Consents and Filings are in full force and effect, the Company and its Insurance Subsidiaries are in compliance with such Consents and neither the Company nor any of its Insurance Subsidiaries has received any notice of any inquiry, investigation or proceeding that would reasonably be expected to result in the suspension, revocation or limitation of any such Consent or otherwise impose any limitation on the conduct of the business of the Company or any of its respective Insurance Subsidiaries, except as set forth in the most recent Preliminary Prospectus and Prospectus or except as any such failure to be in full force and effect, failure to be in compliance with, suspension, revocation or limitation would not, individually or in the aggregate, have a Material Adverse Effect; each of the Company and its Insurance Subsidiaries is in compliance with, and conducts its businesses in conformity with, all applicable insurance laws and regulations, except where the failure to so

 

10

 

comply or conform would not, individually or in the aggregate, have a Material Adverse Effect.  Without limiting the foregoing, each of the Insurance Subsidiaries has made all Filings pursuant to, and has obtained all Consents required of all applicable insurance laws and regulations in connection with the issuance and sale of the Notes.

 

(nn)         The 2008 statutory annual statements of each Insurance Subsidiary and the statutory balance sheets and income statements included in such statutory annual statements together with related schedules and notes have been prepared, in all material respects, in conformity with statutory accounting principles and practices required or permitted by the appropriate insurance regulator of the jurisdiction of domicile of each such Insurance Subsidiary, and such statutory accounting principles and practices have been applied on a consistent basis throughout the periods involved, except as may otherwise be indicated therein or in the notes thereto, and present fairly, in all material respects, the statutory financial position of such Insurance Subsidiaries as of the dates thereof, and the statutory basis results of operations of such Insurance Subsidiaries for the periods covered thereby.

 

2.                                        PURCHASE OF THE NOTES BY THE UNDERWRITERS.

 

Subject to the terms and conditions and upon the basis of the representations and warranties herein set forth, the Company agrees to issue and sell to the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at a price equal to 99.321% of the principal amount per Note, plus accrued interest, if any, from June 8, 2009 to the Closing Date, the principal amount of the Notes set forth opposite such Underwriter’s name in Schedule I hereto, PROVIDED, HOWEVER, that the total principal amount of Notes to be purchased by all Underwriters shall be the total principal amount of Notes set forth in Schedule I.  The Company shall not be obligated to deliver any of the Notes, except upon payment for all the Notes to be purchased on the Closing Date as provided herein.  Upon authorization by the Representatives of the release of the Notes, the Underwriters propose to offer the Notes to the public as set forth in the Prospectus. The Company acknowledges and agrees that the Underwriters may offer and sell the Notes to or through any affiliate of an Underwriter and that any such affiliate may offer and sell Notes purchased by it to or through any Underwriter.

 

3.                                        DELIVERY OF AND PAYMENT FOR NOTES.

 

Delivery of the Notes will be made at the offices of Sullivan & Cromwell LLP, 125 Broad Street, New York, New York 10004 or at such place or places as mutually may be agreed upon by the Company and the Underwriters, at 10:00 A.M., New York City time, on June 8, 2009 or on such later date not more than three Business Days after the foregoing date as will be determined by you and the Company (the “CLOSING DATE”)

 

Delivery of the Notes will be made to you by or on behalf of the Company against payment of the purchase price therefor by wire transfer of immediately available funds.  Delivery of the Notes will be made through the facilities of The Depository Trust Company unless you will otherwise instruct. Any transfer taxes payable in connection with the sale of the Notes will be paid by the Company.  Delivery of the Notes at the time and place specified in this Agreement is a further condition to the obligations of each Underwriter.

 

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4.                                        COVENANTS OF THE COMPANY.

 

The Company covenants and agrees with each Underwriter that:

 

(a)           The Company will file the Prospectus pursuant to Rule 424(b) of the Rules and Regulations not later than the Commission’s close of business on the second Business Day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 424(b).  The Company will notify the Representatives promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for additional information; the Company will prepare and file with the Commission, promptly upon the request of the Representatives, any amendments or supplements to the Registration Statement or the Prospectus which, in the reasonable judgment of the Representatives, may be necessary or advisable in connection with the distribution of the Notes; and the Company will not file any amendment or supplement to the Registration Statement or the Prospectus or file any document under the Exchange Act before the termination of the offering of the Notes by the Underwriters if such document would be deemed to be incorporated by reference into the Prospectus, which filing is not consented to by you after reasonable notice thereof.  The Company will advise you, promptly when any amendment to the Registration Statement has been filed or becomes (or is deemed to have become) effective or any supplement to the Prospectus or any amended Prospectus has been filed.  The Company will prepare one or more final term sheets, containing solely a description of the Notes, substantially in the form of Schedule II hereto and approved by the Representatives and file such term sheet or term sheets pursuant to Rule 433(d) under the Securities Act within the time period prescribed by such Rule.  The Company will advise you promptly of the issuance by the Commission or any State or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, suspending or preventing the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or suspending the qualification of the Notes for offering or sale in any jurisdiction, of the institution of any proceedings for any such purpose, or of receipt by the Company from the Commission of any notice of objection to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the Rules and Regulations; and the Company will use its best efforts to prevent the issuance of any stop order or other such order or any such notice of objection and, if a stop order or other such order is issued or any such notice of objection is received, to obtain as soon as possible the lifting or withdrawal thereof.

 

(b)           The Company will furnish to each of you and to counsel for the Underwriters such number of conformed copies of the Registration Statement, as originally filed and each amendment thereto (excluding exhibits other than this Agreement), any Preliminary Prospectus, any 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 you may from time to time reasonably request.

 

(c)           During the period in which the Prospectus relating to the Notes (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations) is required to be delivered under the Securities Act, the Company will comply with all requirements imposed

 

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upon it by the Securities Act and by the Rules and Regulations, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Notes as contemplated by the provisions hereof and by 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 to make the statements therein, in the light of the circumstances then existing, 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 Securities Act, the Company will promptly notify you and will, subject to Section 4(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.

 

(d)           As soon as practicable, the Company will make generally available (which may be by posting on any publicly accessible website maintained by the Commission or the Investor Relations function of the Company) to its security holders and the Underwriters an earning statement satisfying the requirements of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations.

 

(e)           Whether or not this Agreement becomes effective or is terminated or the sale of the Notes to the Underwriters is consummated, the Company will pay or cause to be paid (A) all fees and expenses (including, without limitation, all registration and filing fees and fees and expenses of the Company’s accountants but excluding fees and expenses of counsel for the Underwriters) incurred in connection with the preparation, printing, filing, delivery and shipping of the Registration Statement (including the financial statements therein and all amendments and exhibits thereto), each Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus, the Statement of Eligibility of the Trustee on Form T-1 filed with the Commission (the “FORM T-1”) and any amendments or supplements of the foregoing and any documents incorporated by reference into any of the foregoing, (B) all fees and expenses incurred in connection with the preparation and delivery to the Underwriters of the No