As filed with the Securities and Exchange Commission on February 6, 1995.
Registration No. 33-57343
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
to
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
------------
EQUITABLE OF IOWA COMPANIES
(Exact name of the Registrant as specified in its charter)
Iowa 42-1083593
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
604 Locust Street
P.O. Box 1635
Des Moines, Iowa 50306-1635
(515) 245-6911
(Address and telephone number of Registrant's principal executive offices)
_____________
John A. Merriman, Esq.
General Counsel and Secretary
604 Locust Street
P.O. Box 1635
Des Moines, Iowa 50306-1635
(515) 245-6787
(Name, address and telephone number of agent for service)
_________________
Copies to:
G. R. Neumann Lynn A. Soukup Gary I. Horowitz
Nyemaster, Goode, McLaughlin, Shaw, Pittman, Potts Simpson Thacher &
Voigts, West, Hansell & & Trowbridge Bartlett
O'Brien, P.C. 2300 N Street, NW 425 Lexington Avenue
1900 Hub Tower Washington, D.C. New York, New York 10017
Des Moines, Iowa 50309 20037 (212) 455-2000
(515) 283-3121 (202) 663-8494
Approximate date of commencement of proposed sale to the
public: From time to time after the Registration Statement
becomes effective.
_______________________
If the only securities being registered on this Form are
being offered pursuant to dividend or interest reinvestment
plans, please check the following box. [_]
If any of the securities being registered on this Form are
to be offered on a delayed or continuous basis pursuant to Rule
415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment
plans, check the following box. [X].
The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall there
after become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall
become effective on such date as the Commission, acting pursuant
to Section 8(a), may determine.
This Amendment No. 1 is being filed to file Exhibit 1.1 to the
Registration Statement.
Part II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee $43,103.75
Legal fees and expenses 100,000
Accounting fees and expenses 50,000
Printing and engraving expenses 75,000
Trustee's fees and expenses 2,000
Rating Agencies' fees 50,000
Blue Sky Fees and Expenses 25,000
Miscellaneous 49,896.25
__________
Total $395,000
==========
</TABLE>
Except for the SEC registration fee, all of the foregoing
are estimates.
Item 15. Indemnification of Officers and Directors
The Company's Restated Articles of Incorporation and Amended
and Restated Bylaws provide that the Company shall indemnify its
directors, officers, employees and agents to the fullest extent
permitted by the Iowa Business Corporation Act (the "IBCA"). The
IBCA provides that a company may indemnify its officers and direc-
tors if (i) the person acted in good faith, and (ii) the person
reasonably believed, in the case of conduct in the person's offi-
cial capacity with the Company, that the conduct was in the
Company's best interests, and in all other cases, that the
person's conduct was at least not opposed to the Company's best
interests, and (iii) in the case of any criminal proceeding, the
person had no reasonable cause to believe the person's conduct
was unlawful. The Company is required to indemnify officers and
directors against reasonable expenses incurred in connection with
any proceeding in which they are wholly successful, on the merits
or otherwise, to which the person may be a party because of the
person's position with the Company. If the proceeding is by or
in the right of the Company, indemnification may be made only for
reasonable expenses and may not be made in respect of any
proceeding in which the person shall have been adjudged liable to
the Company. Further, any such person may not be indemnified in
respect of any proceeding that charges improper personal benefit
to the person, in which the person shall have been adjudged to be
liable.
The Company maintains directors' and officers' liability
insurance, which indemnifies directors and officers of the
Company against certain damages and expenses relating to claims
against them caused by negligent acts, errors or omissions.
Item 16. Exhibits
Exhibit
Number Description of Exhibit
_______ _______________________
1.1 Form of Underwriting Agreement
1.2 Form of Agency Agreement*
4.1 Form of Indenture under which the Debt
Securities are to be issued**
4.2 Form of Registered Security*
4.3 Form of Global Security*
5 Opinion of Nyemaster, Goode, McLaughlin, Voigts,
West, Hansell & O'Brien, P.C.**
12 Computation of Ratio of Earnings to Fixed
Charges**
23.1 Consent of Nyemaster, Goode, McLaughlin,
Voigts, West, Hansell & O'Brien, P.C.
(included in Exhibit 5 as previously filed)**
23.2 Consent of Ernst & Young LLP**
24 Power of Attorney (set forth on the signature page
of the initial Registration Statement)**
25 Statement of Eligibility of the Trustee on Form T-1**
_________________
* To be filed by amendment or incorporated by reference from
other documents filed with the Commission.
** Previously filed.
Item 17. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the Registration
Statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration State
ment; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in
the Registration Statement or any material change to such
information in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above
do not apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) If the securities to be registered are to be offered at
competitive bidding, the undersigned Registrant hereby
undertakes: (1) to use its best efforts to distribute prior to
the opening of bids, to prospective bidders, underwriters, and
dealers, a reasonable number of copies of a prospectus which at
that time meets the requirements of Section 10(a) of the Act, and
relating to the securities offered at competitive bidding, as
contained in the Registration Statement, together with any
supplements thereto, and (2) to file an amendment to the
Registration Statement reflecting the results of bidding, the
terms of the reoffering and related matters to the extent
required by the applicable form, not later than the first use,
authorized by the issuer after the opening of bids, of a
prospectus relating to the securities offered at competitive bid
ding, unless no further public offering of such securities by the
issuer and no reoffering of such securities by the purchasers is
proposed to be made.
(d) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the Registrant pursuant to
the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commis-
sion such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection
with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
(e) The undersigned Registrant hereby undertakes that
(1) for purposes of determining any liability under
the Securities Act of 1933, the information omitted from the form
of prospectus filed as part of this Registration Statement in
reliance upon Rule 430A and contained in a form of prospectus
filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of
this Registration Statement as of the time it was declared effec-
tive; and
(2) for the purpose of determining any liability under
the Securities Act of 1933, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new regis-
tration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(f) The undersigned Registrant hereby undertakes to file,
if necessary, an application for the purpose of determining the
eligibility of the Trustee to act under subsection (a) of Section
310 of the Trust Indenture Act of 1939, as amended, in accordance
with the rules and regulations prescribed by the Securities and
Exchange Commission under Section 305(b)(2) of such Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-3 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
the City of Des Moines, State of Iowa, on February 6, 1995.
EQUITABLE OF IOWA COMPANIES
By /s/ Fred S. Hubbell
__________________________
Fred S. Hubbell
Chairman, President and Chief
Executive Officer
(Principal Executive Officer)
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
Name Title Date
/s/ Fred S. Hubbell Chairman of the Board, President February 6, 1995
____________________ and Chief Executive Officer
Fred S. Hubbell (Principal Executive Officer)
/s/ Paul E. Larson Executive Vice President, Treasurer February 6, 1995
____________________ and Chief Financial Officer
Paul E. Larson (Principal Financial Officer)
/s/ David A. Terwilliger Vice President and Controller February 6, 1995
________________________ (Principal Accounting Officer)
David A. Terwilliger
* /s/ Richard B. Covey Director February 6, 1995
________________________
Richard B. Covey
* /s/ Doris M. Drury Director February 6, 1995
________________________
Doris M. Drury
* /s/ James L. Heskett Director February 6, 1995
________________________
James L. Heskett
* /s/ Richard S. Ingham, Jr. Director February 6, 1995
_____________________________
Richard S. Ingham, Jr.
* /s/ Robert E. Lee Director February 6, 1995
__________________________
Robert E. Lee
* /s/ James E. Luhrs Director February 6, 1995
__________________________
James E. Luhrs
* /s/ Jack D. Rehm Director February 6, 1995
__________________________
Jack D. Rehm
* /s/ Thomas N. Urban Director February 6, 1995
__________________________
Thomas N. Urban
* /s/ Hans F. E. Wachtmeister Director February 6, 1995
______________________________
Hans F. E. Wachtmeister
* /s/ Richard S. White Director February 6, 1995
____________________________
Richard S. White
*By /s/ Paul E. Larson February 6, 1995
____________________________
Paul E. Larson,
Attorney-in-fact
EXHIBIT INDEX
to Registration Statement
on Form S-3
EQUITABLE OF IOWA COMPANIES
Exhibit
Number Description of Exhibit
1.1 Form of Underwriting Agreement
1.2 Form of Agency Agreement *
4.1 Form of Indenture under which the Debt Securities are to
be issued**
4.2 Form of Registered Security*
4.3 Form of Global Security*
5 Opinion of Nyemaster, Goode, McLaughlin, Voigts, West,
Hansell & O'Brien, P.C.**
12 Computation of Ratio of Earnings to Fixed Charges**
23.1 Consent of Nyemaster, Goode, McLaughlin, Voigts, West,
Hansell & O'Brien, P.C. (included in Exhibit 5 as
previously filed)**
23.2 Consent of Ernst & Young LLP**
24 Power of Attorney (set forth on the signature page of
the initial Registration Statement)**
25 Statement of Eligibility of the Trustee on Form T-1**
_________________
* To be filed by amendment or incorporated by reference from
other documents filed with the Commission.
** Previously filed.
Exhibit 1.1
Equitable of Iowa Companies
Debt Securities
Underwriting Agreement
New York, New York
_______ ___, 199___
[__________________________]
As Representatives of the several Underwriters,
c/o [______________________]
[__________________________]
[__________________________]
Dear Sirs:
Equitable of Iowa Companies, an Iowa corporation (the
"Company"), proposes to issue and to sell to the underwriters
named in Schedule I hereto (the "Underwriters"), for whom you are
acting as representatives (the "Representatives"), certain of its
debt securities specified in Schedule II (the "Debt Securities")
and registered under the registration statement referred to in
paragraph 1(a). The Debt Securities will be issued under an
indenture (the "Indenture"), dated as of January 17, 1995,
between the Company and The First National Bank of Chicago, as
Trustee.
1. Representations and Warranties.
The Company represents and warrants to, and agrees
with, each Underwriter as set forth in this Section 1. Certain
terms used in this Section 1 are defined in paragraph (b) below.
(a) If the offering of the Debt Securities is a Delayed
Offering (as specified in Schedule II hereto), paragraph (i)
below is applicable and, if the offering of the Debt Securities
is a Non-Delayed Offering (as so specified), paragraph (ii) below
is applicable.
(i) The Company meets the requirements for use of
Form S-3 under the Securities Act of 1933, as amended
(the "Act"), and has filed with the Securities and
Exchange Commission (the "Commission") a registration
statement (the file number of which is set forth in
Schedule II hereto) on such Form, including a basic
prospectus, for registration under the Act of the
offering and sale of the Debt Securities. The Company
may have filed one or more amendments thereto, and may
have used a Preliminary Final Prospectus, each of which
has previously been furnished to you. Such
registration statement, as so amended, has become
effective. The offering of the Securities is a Delayed
Offering and, although the Basic Prospectus may not
include all the information with respect to the Debt
Securities and the offering thereof required by the Act
and the rules thereunder to be included in the Final
Prospectus, the Basic Prospectus includes all such
information required by the Act and the rules
thereunder to be included therein as of the Effective
Date. The Company will timely file with the Commission
pursuant to Rules 415 and 424(b)(2) or (5) a final
supplement to the form of prospectus included in such
registration statement relating to the Debt Securities
and the offering thereof. As filed, such final
prospectus supplement shall include all required
information with respect to the Debt Securities and the
offering thereof and, except to the extent the
Representatives shall agree in writing to a
modification, shall be in all substantive respects in
the form furnished to you prior to the Execution Time
or, to the extent not completed at the Execution Time,
shall contain only such specific additional information
and other changes (beyond that contained in the Basic
Prospectus and any Preliminary Final Prospectus) as the
Company has advised you, prior to the Execution Time,
will be included or made therein.
(ii) The Company meets the requirements for
the use of Form S-3 under the Act and has filed with
the Commission a registration statement (the file
number of which is set forth in Schedule II hereto) on
such Form, including a basic prospectus, for
registration under the Act of the offering and sale of
the Debt Securities. The Company may have filed one or
more amendments thereto, including a Preliminary Final
Prospectus, each of which has previously been furnished
to you. The Company will timely file with the
Commission either (x) a final prospectus supplement
relating to the Securities in accordance with Rules
430A and 424(b)(1) or (4), or (y) prior to the
effectiveness of such registration statement, an
amendment to such registration statement, including the
form of final prospectus supplement. In the case of
clause (x), the Company has included in such
registration statement, as amended at the Effective
Date, all information (other than Rule 430A
Information) required by the Act and the rules
thereunder to be included in the Final Prospectus with
respect to the Debt Securities and the offering
thereof. As filed, such final prospectus supplement or
such amendment and form of final prospectus supplement
shall contain all Rule 430A Information, together with
all other such required information, with respect to
the Debt Securities and the offering thereof and,
except to the extent the Representatives shall agree in
writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific
additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary
Final Prospectus) as the Company has advised you, prior
to the Execution Time, will be included or made
therein.
(b) The terms which follow, when used in this Agreement,
shall have the meanings indicated. The term "Effective Date"
shall mean each date that the Registration Statement and any
post-effective amendment or amendments thereto became or become
effective and each date after the date hereof on which a document
incorporated by reference in the Registration Statement is filed.
"Execution Time" shall mean the date and time that this Agreement
is executed and delivered by the parties hereto. "Basic
Prospectus" shall mean the prospectus referred to in paragraph
(a) above contained in the Registration Statement at the
Effective Date including, in the case of a Non-Delayed Offering,
any Preliminary Final Prospectus. "Preliminary Final Prospectus"
shall mean any preliminary prospectus supplement to the Basic
Prospectus which describes the Debt Securities and the offering
thereof and is used prior to filing of the Final Prospectus.
"Final Prospectus" shall mean the prospectus supplement relating
to the Debt Securities that is first filed pursuant to Rule
424(b) after the Execution Time, together with the Basic
Prospectus or, if, in the case of a Non-Delayed Offering, no
filing pursuant to Rule 424(b) is required, shall mean the form
of final prospectus relating to the Debt Securities, including
the Basic Prospectus, included in the Registration Statement at
the Effective Date. "Registration Statement" shall mean the
registration statement referred to in paragraph (a) above,
including incorporated documents, exhibits and financial
statements, as amended at the Execution Time (or, if not
effective at the Execution Time in the form in which it has or
shall become effective) and, in the event any post-effective
amendment thereto becomes effective prior to the Closing Date (as
hereinafter defined) pursuant to Section 3 hereof, shall also
mean such registration statement as so amended on such date.
Such term shall include any Rule 430A Information deemed to be
included therein at the Effective Date as provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Regulation S-K" refer to
such rules or regulations under the Act. "Rule 430A Information"
means information with respect to the Debt Securities and
offering thereof permitted to be omitted from the Registration
Statement when it becomes effective pursuant to Rule 430A. Any
reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") on or before the Effective Date or
the date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the filing of
any document under the Exchange Act after the Effective Date, or
the date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be, deemed to
be incorporated therein by reference. A "Non-Delayed Offering"
shall mean an offering of securities which is intended to
commence promptly after the effective date of a registration
statement, with the result that, pursuant to Rules 415 and 430A,
all information (other than Rule 430A Information) with respect
to the securities so offered must be included in such
registration statement at the effective date thereof. A "Delayed
Offering" shall mean an offering of securities pursuant to Rule
415 which does not commence promptly after the effective date of
a registration statement, with the result that only information
required pursuant to Rule 415 need be included in such
registration statement at the effective date thereof with respect
to the securities so offered. Whether the offering of the Debt
Securities is a Non-Delayed Offering or a Delayed Offering shall
be set forth in Schedule II hereto.
(c) On the Effective Date, the Registration Statement did or
will, and when the Final Prospectus is first filed (if required)
in accordance with Rule 424(b), on the Closing Date pursuant to
Section 3 hereof, the Final Prospectus (and any supplement
thereto) will, comply in all material respects with the
applicable requirements of the Act, the Exchange Act and the
Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act") and the respective rules thereunder; on the Effective Date,
the Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading ; on the Effective Date and on
the Closing Date pursuant to Section 3 hereof, the Indenture did
or will comply in all material respects with the requirements of
the Trust Indenture Act and the rules thereunder; and, on the
Effective Date, if not filed pursuant to Rule 424(b), the Final
Prospectus did not or will not, and on the date of any filing
pursuant to Rule 424(b), on the Closing Date pursuant to Section
3 hereof, the Final Prospectus (together with any supplement
thereto) will not, include any 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; provided, however, that the
Company makes no representations or warranties as to (i) that
part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification (Form T-1) under the
Trust Indenture Act of the Trustee or (ii) the information
contained in or omitted from the Registration Statement or the
Final Prospectus (or any supplement thereto) in reliance upon and
in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter through the
Representatives specifically for use in connection with the
preparation of the Registration Statement or the Final Prospectus
(or any supplement thereto).
(d) The Company and each of the corporations of which a
majority of the outstanding voting equity securities are owned,
directly or indirectly, by the Company (the "Subsidiaries") have
been duly incorporated and are validly existing as corporations
in good standing under the laws of their respective jurisdictions
of incorporation, are duly qualified to do business and are in
good standing as foreign corporations in each jurisdiction in
which their respective ownership or lease of property or the
conduct of their respective businesses requires such
qualification, and have all power and authority necessary to own
or hold their respective properties and to conduct the businesses
in which they are engaged.
(e) The Company has all of the requisite corporate power and
authority to execute, issue and deliver the Debt Securities and
to incur and perform its obligations provided for therein; the
Debt Securities have been duly authorized by the Company and,
when executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the
Underwriters as provided for in this Agreement or by the
purchasers thereof pursuant to any Delayed Delivery Contract (as
hereinafter defined), with respect to Contract Securities (as
hereinafter defined), will have been duly executed, authenticated
(assuming due authentication by the Trustee), issued and
delivered and will constitute legal, valid and binding
obligations of the Company entitled to the benefits of the
Indenture and enforceable against the Company in accordance with
their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization or other similar laws
affecting enforcement of creditors' rights generally, by general
principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law) or by an implied
covenant of good faith and fair dealing; and the Debt Securities
conform in all material respects to the description thereof
contained in the Final Prospectus.
(f) The Company has all of the requisite corporate power and
authority to execute and deliver the Indenture and to perform its
obligations provided for therein; the Indenture has been duly
authorized, executed and delivered by the Company and has been
duly qualified under the Trust Indenture Act, will be
substantially in the form heretofore delivered to the
Underwriters and assuming due execution and delivery by the
Trustee, will constitute a legal, valid and binding obligation of
the Company enforceable against the Company in accordance with
its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization or other similar laws
affecting enforcement of creditors' rights generally, by general
principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law) or by an implied
covenant of good faith and fair dealing; and the Indenture
conforms in all material respects to the description thereof
contained in the Final Prospectus.
(g) Each of Equitable Life Insurance Company of Iowa,
("Equitable Life"), USG Annuity & Life Company, ("USG") and each
other Subsidiary of the Company, if any, which is engaged in the
business of insurance or reinsurance (collectively, the
"Insurance Subsidiaries") holds such insurance licenses,
certificates and permits from governmental authorities
(including, without limitation, from the insurance regulatory
agencies of the various jurisdictions where it conducts business
(the "Insurance Licenses")) as are necessary to the conduct of
its business as described in the Final Prospectus; the Company
and each Insurance Subsidiary have fulfilled and performed all
obligations necessary to maintain the Insurance Licenses; except
as disclosed in the Final Prospectus, there is no pending or, to
the knowledge of the Company, threatened action, suit, proceeding
or investigation that could reasonably be expected to result in
the revocation, termination or suspension of any Insurance
License; and except as disclosed in the Final Prospectus, no
insurance regulatory agency or body has issued, or commenced any
proceeding for the issuance of, any order or decree impairing,
restricting or prohibiting the payment of dividends by any
Insurance Subsidiary to its parent.
(h) Except as disclosed in the Final Prospectus, the Company
and the Insurance Subsidiaries have made no material changes in
their insurance reserving practices since the most recent audited
financial statements included or incorporated in the Final
Prospectus.
(i) All reinsurance treaties and arrangements to which any
Insurance Subsidiary is a party are in full force and effect and
no Insurance Subsidiary is in violation of or in default in the
performance, observance or fulfillment of, any obligation,
agreement, covenant or condition contained therein; no Insurance
Subsidiary has received any notice from any of the other parties
to such treaties, contracts or agreements that such other party
intends not to perform such treaty and, to the best knowledge of
the Company and the Insurance Subsidiaries, the Company and the
Insurance Subsidiaries have no reason to believe that any of the
other parties to such treaties or arrangements will be unable to
perform such treaty or arrangement except to the extent
adequately and properly reserved for in the consolidated
financial statements of the Company included in the Final
Prospectus.
(j) The statutory financial statements of the Insurance
Subsidiaries from which certain ratios and other statistical data
filed as part of the Registration Statement or included or
incorporated in the Final Prospectus have been derived, have for
each relevant period been prepared in conformity with statutory
accounting principles or practices required or permitted by the
National Association of Insurance Commissioners and by the
appropriate Insurance Department of the jurisdiction of domicile
of each Insurance Subsidiary, and such statutory accounting
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 the statutory financial
position of the Insurance Subsidiaries as of the dates thereof,
and the statutory basis results of operations of the Insurance
Subsidiaries for the periods covered thereby.
(k) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's
authorization; and (ii) assets are safeguarded and transactions
are recorded to permit preparation of financial statements in
conformity with generally accepted accounting principles and, as
of the Closing Date (as defined in Section 3 hereof), the Company
will continue to maintain such a system.
(l) The execution, delivery and performance of this Agreement,
the Indenture and any Delayed Delivery Contract by the Company,
the consummation of the transactions contemplated hereby and the
issuance and delivery of the Debt Securities hereunder, 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 or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets
of the Company or any of its subsidiaries is subject, which
conflict, breach, violation or default could reasonably be
expected to have a material adverse effect on the business,
financial condition or stockholder's equity of the Company and
its subsidiaries taken as a whole, nor will such actions result
in any violation of any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction
over the Company or any of its subsidiaries or any of their
properties or assets, which conflict, breach, violation or
default could reasonably be expected to have a material adverse
effect on the business, financial condition or stockholder's
equity of the Company and its subsidiaries taken as a whole, nor
will such actions result in any violation of the provisions of
the charter or by-laws of the Company or any of its subsidiaries;
and except for the registration of the Debt Securities under the
Act and such consents, approvals, authorizations, registrations
or qualifications as may be required under the Exchange Act, the
Trust Indenture Act and applicable state or foreign securities
laws in connection with the purchase and distribution of the Debt
Securities by the Underwriters, no consent, approval,
authorization or order of, or filing or registration with, any
such court or governmental agency or body is required for the
execution, delivery and performance of this Agreement by the
Company or the consummation of the transactions contemplated
hereby by the Company.
(m) This Agreement and any Delayed Delivery Contract have been
duly authorized, executed and delivered by the Company.
(n) There are no contracts, agreements or understandings
between the Company and any person granting such person the right
to require the Company to file a registration statement under the
Act with respect to any securities of the Company owned or to be
owned by such person or to require the Company to include such
securities in the securities registered pursuant to the
Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the Company
under the Act, except as disclosed in the Final Prospectus.
(o) Except as described in the Final Prospectus, there are no
legal or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any property or
assets of the Company or any of its subsidiaries is the subject
which could reasonably be expected to have a material adverse
effect on the business, financial condition or stockholders'
equity of the Company and its subsidiaries taken as a whole; and
to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others.
(p) Neither the Company nor any of its subsidiaries (1) is in
violation of its charter or by-laws, (2) is in default, and no
event has occurred which, with notice or lapse of time or both,
would constitute a default, in the due performance or observance
of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or to
which any of its properties or assets is subject, which default
could reasonably be expected to have a material adverse effect on
the business, financial condition or stockholders' equity of the
Company and its subsidiaries taken as a whole or (3) is in
violation of any law, ordinance, governmental rule, regulation or
court decree to which it or its property or assets may be subject
or has failed to obtain any license, permit, certificate,
franchise or other governmental authorization or permit necessary
to the ownership of its property or to the conduct of its
business, which violation or failure could reasonably be expected
to have a material adverse effect on the business, financial
condition or stockholders' equity of the Company and its
subsidiaries taken as a whole.
(q) Since the date of the most recent financial statements
included or incorporated in the Final Prospectus, there has been
no material adverse change in the condition (financial or other),
earnings, business or properties of the Company and its
subsidiaries taken as a whole, nor to the best of the Company's
knowledge, has any condition arisen which might reasonably be
expected to cause such a material adverse change, whether or not
arising from transactions in the ordinary course of business,
except as set forth in, or contemplated in the Final Prospectus.
2. Purchase and Sale. Subject to the terms and conditions
and in reliance upon the representations and warranties herein
set forth, the Company agrees to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase
from the Company, at the purchase price set forth in Schedule II
hereto the principal amount of Debt Securities set forth opposite
such Underwriter's name on Schedule I hereto, except that, if
Schedule II hereto provides for the sale of Debt Securities
pursuant to Delayed Delivery Contracts the respective principal
amounts of Debt Securities to be purchased by the Underwriters
shall be as set forth in Schedule I hereto less the respective
amounts of Contract Securities determined as provided below.
Debt Securities to be purchased by the Underwriters pursuant to
Delayed Delivery Contracts as hereinafter provided are called
"Contract Securities".
If so provided in Schedule II hereto, the Underwriters
are authorized to solicit offers to purchase Debt Securities from
the Company pursuant to delayed delivery contracts ("Delayed
Delivery Contracts"). The Underwriters will endeavor to make
such arrangements and, as compensation therefor, the Company will
pay to the Representatives, for the account of the Underwriters,
on the Closing Date, the percentage set forth in Schedule II
hereto of the principal amount of the Debt Securities for which
Delayed Delivery Contracts are made. Delayed Delivery Contracts
are to be with institutional investors, including commercial and
savings banks, insurance companies, pension funds, investment
companies and educational and charitable institutions. The
Company will enter into Delayed Delivery Contracts in all cases
where sales of Contract Securities arranged by the Underwriters
have been approved by the Company but, except as the Company may
otherwise agree, each such Delayed Delivery Contract must be for
not less than the minimum principal amount set forth in Schedule
II hereto and the aggregate principal amount of Contract
Securities may not exceed the maximum aggregate principal amount
set forth in Schedule II hereto. The Underwriters will not have
any responsibility in respect of the validity or performance of
Delayed Delivery Contracts. The principal amount of Debt
Securities to be purchased by each Underwriter as set forth in
Schedule I hereto shall be reduced by an amount which shall bear
the same proportion to the total principal amount of the Contract
Securities as the principal amount of the Debt Securities set
forth opposite the name of such Underwriter bears to the
aggregate principal amount set forth in Schedule I hereto, except
to the extent that you determine that such reduction shall be
otherwise than in such proportion and so advise the Company in
writing; provided, however, that the total principal amount of
Debt Securities to be purchased by all Underwriters shall be the
aggregate principal amount set forth in Schedule I hereto less
the aggregate principal amount of Contract Securities.
3. Delivery and Payment. Delivery of and payment for the
Debt Securities shall be made at the office of Simpson Thacher &
Bartlett, 425 Lexington Avenue, New York, New York, at 10:00 AM,
New York City time, on , 199 , or such later date
(not later than , 199 ) as the Representatives
shall designate, which date and time may be postponed by
agreement among the Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and
payment for the Debt Securities being herein called the "Closing
Date"). Delivery of the Debt Securities shall be made to the
Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through
the Representatives of the aggregate purchase price of the Debt
Securities being sold by the Company to or upon the order of the
Company. Certificates for the Debt Securities shall be
registered in such names and in such denominations as the
Representatives may request not less than three full business
days in advance of the Closing Date.
The Company agrees to have the Debt Securities
available for inspection, checking and packaging by the
Representatives in New York, New York, not later than 1:00 PM on
the business day prior to the Closing Date.
4. Offering by Underwriters. It is understood that the
several Underwriters propose to offer the Debt Securities for
sale to the public as set forth in the Final Prospectus.
5. Agreements.
(a) The Company agrees with the several Underwriters that:
(i) The Company will use its best efforts to cause the
Registration Statement, and any amendment thereto, if not
effective at the Execution Time, to become effective. The
Company will cause the Final Prospectus, properly completed, and
any supplement thereto to be filed with the Commission pursuant
to the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will promptly
advise the Representatives (A) when the Registration Statement
shall have been filed or become effective, (B) when any amendment
thereof shall have been filed or become effective, (C) when the
Final Prospectus shall have been filed with the Commission
pursuant to Rule 424(b), (D) of any request by the Commission for
any amendment or supplement of the Registration Statement or the
Final Prospectus or for any additional information, (E) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (F) of the
receipt by the Company of any notification with respect to the
suspension of the qualification of the Debt Securities for sale
in any jurisdiction or the initiation or threatening of any
proceeding for such purpose. Prior to the termination of the
offering of the Debt Securities, the Company will not file any
amendment of the Registration Statement or supplement (including
the Final Prospectus or any Preliminary Final Prospectus) to the
Basic Prospectus unless the Company has furnished to you a copy
for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object.
The Company will use its best efforts to prevent the issuance of
any such stop order and, if issued, to obtain as soon as possible
the withdrawal thereof.
(ii) If, at any time when a prospectus relating to the Debt
Securities is required to be delivered under the Act, any event
occurs as a result of which the Final Prospectus as then
supplemented would include 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, or if it shall be necessary to
amend the Registration Statement or to supplement the Final
Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (A)
prepare and file with the Commission, subject to paragraph (i) of
this Section 5, an amendment or a supplement which will correct
such statement or omission or an amendment or a supplement which
will effect such compliance and (B) supply any supplemented
Prospectus to you in such quantities as you may reasonably
request.
(iii) As soon as practicable, the Company will make
generally available to its security holders and to the
Representatives an earnings statement or statements of the
Company and its subsidiaries which will satisfy the provisions of
Section 11(a) of the Act and Rule 158 under the Act.
(iv) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, signed copies of
the Registration Statement (including exhibits thereto) and to
each other Underwriter a copy of the Registration Statement
(without exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the
Act, as many copies of any Preliminary Final Prospectus and the
Final Prospectus and any supplement thereto as the
Representatives may reasonably request. The Company will pay the
expenses of printing or other production of all documents
relating to the offering.
(v) The Company will arrange for the qualification of the
Debt Securities for sale under the laws of such jurisdictions
within the United States and its territories as the
Representatives may designate and will maintain such
qualifications in effect so long as required for the distribution
of the Debt Securities.
(vi) The Company confirms as of the date hereof that it is
in compliance with all provisions of Section 1 of Laws of
Florida, Chapter 92-198, An Act Relating to Disclosure of Doing
Business with Cuba, and the Company further agrees that if it
commences engaging in business with the government of Cuba or
with any person or affiliate located in Cuba after the date the
Registration Statement becomes or has become effective with the
Commission or with the Florida Department of Banking and Finance
(the "Department"), whichever date is later, or if the
information reported in the Final Prospectus, if any, concerning
the Company's business with Cuba or with any person or affiliate
located in Cuba changes in any material way, the Company will
provide the Department notice of such business or change, as
appropriate, in a form acceptable to the Department.
(vii) The Company will not, until the business date set
forth on Schedule II hereto, without the prior written consent of
the Representatives, offer, sell or contract to sell, or
otherwise dispose of, directly or indirectly, any debt securities
issued or guaranteed by the Company (other than the Debt
Securities or commercial paper or pursuant to the Credit
Agreements, dated March 31, 1994, among the Company, Morgan
Guaranty Trust Company of New York, as agent, and the banks
parties thereto as may be amended, modified or extended from time
to time).
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase and pay for the Debt
Securities shall be subject to the accuracy of the
representations and warranties on the part of the Company
contained herein as of the Execution Time, the Closing Date and
any settlement date pursuant to Section 3 hereof, to the accuracy
of the statements of the Company made in any certificates
pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following
additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in
writing to a later time, the Registration Statement shall have
become effective not later than (i) 6:00 PM New York City time on
the date of determination of the public offering price, if such
determination occurred at or prior to 3:00 PM New York City time
on such date or (ii) 12:00 Noon on the business day following the
day on which the public offering price was determined, if such
determination occurred after 3:00 PM New York City time on such
date; if filing of the Final Prospectus, or any supplement
thereto, is required pursuant to Rule 424(b), the Final
Prospectus, and any such supplement, shall have been filed in the
manner and within the time period required by Rule 424(b); and no
stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives
the opinion of Nyemaster, Goode, McLaughlin, Voigts, West,
Hansell & O'Brien, P.C., counsel for the Company, dated the
Closing Date, to the effect that:
(i) each of the Company and its subsidiaries listed on
Schedule III (the "Significant Subsidiaries") has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction in which it is
chartered or organized, with full corporate power and authority
to own its properties and conduct its business as described in
the Final Prospectus, and is duly qualified to do business as a
foreign corporation and is in good standing under the laws of
each jurisdiction which requires such qualification wherein it
owns or leases material properties or conducts material business;
(ii) the Company has all of the requisite corporate power
and authority to execute and deliver the Indenture and to perform
its obligations provided for therein; and the Indenture has been
duly authorized, executed and delivered and has been duly
qualified under the Trust Indenture Act and the Debt Securities
have been duly authorized;
(iii) the Indenture constitutes a legal, valid and binding
obligation of the Company enforceable against the Company in
accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization or other
similar laws affecting enforcement of creditors' rights
generally, by general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law) or
by an implied covenant of good faith and fair dealing; and, when
authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Underwriters pursuant to
this Agreement, or by the purchasers thereof pursuant to Delayed
Delivery Contracts, in the case of any Contract Securities, the
Debt Securities will constitute legal, valid and binding
obligations of the Company entitled to the benefits of the
Indenture;
(iv) the Company's authorized equity capitalization is as
set forth in the Final Prospectus;
(v) the Indenture conforms in all material respects to the
description thereof contained in the Final Prospectus;
(vi) to the best knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any court
or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries required to be
disclosed in the Registration Statement which is not adequately
disclosed in the Final Prospectus, and there is no contract or
other document required to be described in the Registration
Statement or Final Prospectus, or to be filed as an exhibit,
which is not described or filed as required;
(vii) the statements contained in the Final Prospectus
under the heading "Description of Debt Securities" fairly
summarize the matters therein described;
(viii) The statements incorporated by reference in the
Final Prospectus from the Company's most recent Annual Report on
Form 10-K under the heading "Business -- Regulation" (to the
extent that such statements refer to Iowa or Oklahoma law) fairly
summarize the matters therein described;
(ix) the Registration Statement has become effective under
the Act; any required filing of the Basic Prospectus, any
Preliminary Final Prospectus and the Final Prospectus or any
supplements thereto pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); to the
best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or
threatened; the Registration Statement, the Final Prospectus (and
any supplements thereto) (other than the financial statements and
other financial and statistical information contained therein as
to which such counsel need express no opinion) comply as to form
in all material respects with the applicable requirements of the
Act, the Exchange Act and the Trust Indenture Act and the
respective rules thereunder;
(x) this Agreement and any Delayed Delivery Contract have
been duly authorized, executed and delivered by the Company;
(xi) no consent, approval, authorization or order of any
court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated
hereby or by any Delayed Delivery Contract, or for the execution,
delivery and performance by the Company of this Agreement, except
(A) such as have been obtained or made under the Act, the
Exchange Act, the Trust Indenture Act, and the rules and
regulations of the Commission thereunder, and (B) such as may be
required under the state securities or blue sky laws or foreign
securities laws in connection with the purchase and distribution
of the Debt Securities by the Underwriters;
(xii) neither the issue and sale of the Debt Securities,
nor the consummation of any other of the transactions
contemplated herein, nor the fulfillment of the terms hereof or
of any Delayed Delivery Contract will conflict with, result in a
breach of, or constitute a default under the charter or by-laws
of the Company or any of its subsidiaries or the terms of any
indenture or other agreement or instrument known to such counsel
and to which the Company or any of its subsidiaries is a party or
bound, or result in a violation of any statute or regulation, or
any order or decree known to such counsel to be applicable to the
Company or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Company or any of its subsidiaries;
(xiii) Each Insurance Subsidiary holds such insurance
licenses, certificates and permits from governmental authorities
(including, without limitation, Insurance Licenses) which are
necessary to the conduct of its business as described in the
Final Prospectus; to the best knowledge of such counsel, there is
no pending or threatened action, suit, proceeding or
investigation that could reasonably be expected to result in the
revocation, termination or suspension of any Insurance License;
and to the knowledge of such counsel, no insurance regulatory
agency or body has issued, or commenced any proceeding for the
issuance of, any order or decree impairing, restricting or
prohibiting the payment of dividends by any Insurance Subsidiary
to its parent;
(xiv) To the best knowledge of such counsel, all
reinsurance treaties and arrangements to which any Insurance
Subsidiary is a party are in full force and effect and no
Insurance Subsidiary is in violation of or in default in the
performance, observance or fulfillment of, any obligation,
agreement, covenant or condition contained therein; and
(xv) To the best knowledge of such counsel, no holders of
securities of the Company have rights to the registration of such
securities under, or by reason of the filing of, the Registration
Statement, except as disclosed in the Registration Statement.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws other than the
Federal laws of the United States of America and the laws of
the State of Iowa, to the extent they deem proper and
specified in such opinion, upon the opinion of other counsel
of good standing whom they believe to be reliable and who
are satisfactory to counsel for the Underwriters and (B) as
to matters of fact, to the extent they deem proper, on
certificates of responsible officers of the Company and
public officials. References to the Final Prospectus in
this paragraph (b) include any supplements thereto.
(c) The Company shall have furnished to the Representatives
the opinion of Shaw, Pittman, Potts & Trowbridge, counsel for the
Company, dated the Closing Date, covering the matters set forth
in subparagraphs (b)(iii) above.
(d) The Company shall have furnished to the Representatives
the letters of Nyemaster, Goode, McLaughlin, Voigts, West,
Hansell & O'Brien, P.C., counsel for the Company, addressed to
them dated the Closing Date, to the effect that nothing has come
to the attention of such counsel that would lead such counsel to
believe that the Registration Statement or any post-effective
amendment thereto, as of the time such Registration Statement or
amendment became effective under the Act, contained any untrue
statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading or that the Final Prospectus
(and any supplements thereto), as of the date thereof and as of
the Closing Date, includes any untrue statement of a material
fact or omits to state a material fact necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading (other than the financial
statements, financial schedules and other financial and
statistical information contained therein as to which such
counsel need not express any view).
(e) The Representatives shall have received from Simpson
Thacher & Bartlett, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the issuance
and sale of the Debt Securities, the Registration Statement, the
Final Prospectus (together with any supplement thereto) and other
related matters as the Representatives may reasonably require,
and the Company shall have furnished to such counsel such
documents as they may reasonably request for the purpose of
enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board
and President and the principal financial or accounting officer
of the Company, dated the Closing Date, to the effect that the
signers of such certificate have carefully examined the
Registration Statement, the Final Prospectus, any supplement to
the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as
of the Closing Date with the same effect as if made on the
Closing Date and the Company has complied with all the agreements
and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus, there has been no
material adverse change in the condition (financial or other),
earnings, business or properties of the Company and its
subsidiaries taken as a whole, nor, to the best of the Company's
knowledge, has any condition arisen which might reasonably be
expected to cause such a material adverse change, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Final Prospectus.
(g) Subsequent to the execution and delivery of this
Agreement there shall not have occurred (i) any downgrading in
the claims-paying ability rating of Equitable Life or USG by A.M.
Best Company, Inc., (ii) any public announcement that A.M. Best
Company, Inc. has under surveillance or review its rating of the
claims-paying ability of any Insurance Subsidiary (other than an
announcement with positive or neutral implications of a possible
upgrading or maintenance of the same rating, and no implication
of a possible downgrading, of such rating), (iii) any rating of
the Debt Securities from Standard & Poor's Corporation ("S&P") of
less than A or from Moody's Investors Service ("Moody's") of less
than A3, or (iv) if the Company at the Execution Time has debt
outstanding which is then rated by S&P or Moody's, there shall
not have occurred (A) any downgrading in the rating of the
Company by S&P or Moody's or (B) any public announcement that
either S&P or Moody's has under surveillance or review its rating
of the Company (other than an announcement with positive or
neutral implications of a possible upgrading or maintenance of
the same rating, and no implication of a possible downgrading, of
such rating).
(h) At the Execution Time and at the Closing Date, Ernst &
Young shall have furnished to the Representatives a letter or
letters, dated respectively as of the date of this Agreement and
as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants
within the meaning of the Act and the Exchange Act and the
applicable published rules and regulations thereunder and stating
in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules incorporated in the Registration
Statement and the Final Prospectus and reported on by them comply
in form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related
published rules and regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and its
subsidiaries; their limited review in accordance with standards
established by the American Institute of Certified Public
Accountants of the unaudited interim financial information as
indicated in their report thereon; carrying out certain specified
procedures (but not an examination in accordance with generally
accepted auditing standards) which would not necessarily reveal
matters of significance with respect to the comments set forth in
such letter; a reading of the minutes of the meetings of the
stockholders, directors and executive and audit committees of the
Company, Equitable Life and USG; and inquiries of certain
officials of the Company who have responsibility for financial
and accounting matters of the Company and its subsidiaries as to
transactions and events subsequent to the date of the most recent
audited financial statements included or incorporated into the
Registration Statement, nothing came to their attention which
caused them to believe that:
(1) the unaudited financial statements included or
incorporated in the Registration Statement and the Final
Prospectus do not comply in form in all material respects with
applicable accounting requirements of the Act and the Exchange
Act and with the published rules and regulations of the
Commission with respect to financial statements included or
incorporated in quarterly reports on Form 10-Q under the Exchange
Act; and said unaudited financial statements are not in
conformity with generally accepted accounting principles applied
on a basis substantially consistent with that of the audited
financial statements incorporated in the Registration Statement
and the Final Prospectus; or
(2) with respect to the period subsequent to the date of
the most recent financial statements, audited or unaudited, in or
incorporated in the Registration Statement and the Final
Prospectus, there were any changes, at a specified date not more
than five business days prior to the date of the letter, in the
debt of the Company and its subsidiaries or capital stock of the
Company or decreases in the stockholders' equity of the Company
as compared with the amounts shown on the most recent
consolidated balance sheet incorporated in the Registration
Statement and the Final Prospectus, or for the period from the
date of the most recent financial statements incorporated in the
Final Prospectus to such specified date there were any decreases,
as compared with the corresponding period in the preceding year,
in net investment income, total revenues, income before income
taxes or net income of the Company and its subsidiaries, except
in all instances for changes or decreases set forth in such
letter, in which case the letter shall be accompanied by an
explanation by the Company as to the significance thereof unless
said explanation is not deemed necessary by the Representatives;
and
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Registration
Statement and the Final Prospectus, including, without
limitation, the information set forth under the captions "Ratio
of Earnings to Fixed Charges" and such other captions as the
Representatives may reasonably request in the Final Prospectus,
the information included or incorporated in Items 1, 5, 6, 7, 11
and 13 of the Company's most recent Annual Report on Form 10-K,
incorporated in the Registration Statement and the Final
Prospectus, and the information included in the "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" included or incorporated in the Company's Quarterly
Reports on Form 10-Q that have been filed since the date of the
Company's most recent Annual Report on Form 10-K, incorporated in
the Registration Statement and the Final Prospectus, agrees with
the accounting records of the Company and its subsidiaries,
excluding any questions of legal interpretation.
References to the Final Prospectus in this paragraph
(h) include any supplements thereto at the date of the
letter.
(i) Subsequent to the respective dates as of which information
is given in the Registration Statement (exclusive of any
amendment thereto filed after the date hereof) and the Final
Prospectus (exclusive of any supplement thereto dated after the
date hereof), there shall not have been (i) any change or
decrease specified in the letter or letters referred to in
paragraph (h) of this Section 6 or (ii) any change, or any
development involving a prospective change, in or affecting the
business or properties of the Company and its subsidiaries the
effect of which, in any case referred to in clause (i) or (ii)
above, is, in the judgment of the Representatives, so material
and adverse as to make it impractical or inadvisable to proceed
with the public offering or delivery of the Debt Securities as
contemplated by the Registration Statement (exclusive of any
amendment thereto) and the Final Prospectus (exclusive of any
supplement thereto).
(j) On or prior to the Execution Time, if the Debt
Securities are to be listed on any national securities exchange,
such national securities exchange shall have approved the Debt
Securities to be sold by the Company hereunder for listing
subject to official notice of issuance.
(k) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably
request.
(l) The Company shall have accepted Delayed Delivery Contracts
in any case where sales of Contract Securities arranged by the
Underwriters have been approved by the Company.
If any of the conditions specified in this Section 6
shall not have been fulfilled in all material respects when and
as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall
not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this
Agreement and all obligation of the Underwriters hereunder may be
cancelled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to
the Company in writing or by telephone or telegraph confirmed in
writing.
7. Reimbursement of Underwriters' Expenses. If the sale of
the Debt Securities provided for herein is not consummated
because any condition to the obligations of the Underwriters set
forth in Section 6 hereof is not satisfied, because of any
termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof
other than by reason of a default by any of the Underwriters, the
Company will reimburse the Underwriters severally upon demand for
all reasonable out-of-pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the
Debt Securities. Without limiting the foregoing, the
Underwriters agree to provide to the Company reasonable
documentation of the out-of-pocket expenses described above.
8. Indemnification and Contribution. (a) The Company agrees
to indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each
person who controls any Underwriter within the meaning of either
the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of
them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material
fact contained in the registration statement for the registration
of the Debt Securities as originally filed or in any amendment
thereof, or in the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, or in any amendment thereof
or supplement thereto, or 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 agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any
such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with
written information furnished to the Company by or on behalf of
any Underwriter through the Representatives specifically for
inclusion therein. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(a) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers
who signs the Registration Statement and each person who controls
the Company within the meaning of either the Act or the Exchange
Act, but only with reference to written information relating to
such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for
inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company
acknowledges that the statements set forth in the last paragraph
of the cover page and under the heading "Underwriting" or "Plan
of Distribution" and, if Schedule II hereto provides for sales of
Debt Securities pursuant to Delayed Delivery Contracts, in the
last sentence under the heading "Delayed Delivery Contracts" in
any Preliminary Final Prospectus or the Final Prospectus
constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in the documents
referred to in the foregoing indemnity, and you, as the
Representatives, confirm that such statements are correct.
(b) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 8, notify
the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not
relieve it from liability under paragraph (a) or (b) above unless
and to the extent it did not otherwise learn of such action and
such failure results in the forfeiture by the indemnifying party
of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party
shall be entitled to appoint counsel of the indemnifying party's
choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter
be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth
below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in any action, the indemnified party shall have
the right to employ separate counsel (including local counsel),
and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest,
(ii) the actual or potential defendants in, or targets of, any
such action include both the indemnified party and the
indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available
to it and/or other indemnified parties which are different from
or additional to those available to the indemnifying party, (iii)
the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the
institution of such action or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim
or action) unless such settlement, compromise or consent includes
an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(c) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to
hold harmless an indemnified party for any reason, the Company
and the Underwriters agree that the Underwriters and the Company
shall contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same)
(collectively, "Losses") to which the Company and one or more of
the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the
Company and by the Underwriters from the offering of the Debt
Securities; provided, however, that in no case shall any
Underwriter (except as may be provided in the agreement among
underwriters relating to the offering of the Debt Securities) be
responsible for any amount in excess of the underwriting discount
and commissions applicable to the Debt Securities purchased by
such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the
Company and the Underwriters shall contribute in such proportion
as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company and the Underwriters in
connection with the statements or omissions which resulted in
such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed
to be equal to the total net proceeds from the offering (before
deducting expenses) and benefits received by the Underwriters
shall be deemed to be equal to the total underwriting discounts
and commissions, in each case as set forth on the cover page of
the Final Prospectus. Relative fault shall be determined by
reference to whether any alleged untrue statement or omission
relates to information provided by the Company or the
Underwriters. The Company and the Underwriters agree that it
would not be just and equitable if contribution were determined
by pro rata allocation or any other method of allocation which
does not take account of the equitable considerations referred to
above. Notwithstanding the provisions of this paragraph (d), no
person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person
who controls an Underwriter within the meaning of either the Act
or the Exchange Act and each director, officer, employee or agent
of an Underwriter shall have the same rights to contribution as
such Underwriter, and each person who controls the Company within
the meaning of either the Act or the Exchange Act, each officer
of the Company who shall have signed the Registration Statement
and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the
applicable terms and provisions of this paragraph (d).
9. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the Debt
Securities agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters
shall be obligated severally to take up and pay for (in the
respective proportions which the amount of Debt Securities set
forth opposite their names in Schedule I hereto bears to the
aggregate amount of Debt Securities set forth opposite the names
of all the remaining Underwriters) the Debt Securities which the
defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate
amount of Debt Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate amount of Debt Securities set forth in Schedule I
hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase
any, of the Debt Securities, and if such nondefaulting
Underwriters do not purchase all the Debt Securities, this
Agreement will terminate without liability to any nondefaulting
Underwriter or the Company. In the event of a default by any
Underwriter as set forth in this Section 9, the Closing Date
shall be postponed for such period, not exceeding seven days, as
the Representatives shall determine in order that the required
changes in the Registration Statement and the Final Prospectus or
in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting
Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default
hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by
notice given to the Company prior to delivery of and payment for
the Debt Securities, if prior to such time (i) trading in any of
the Company's securities shall have been suspended by the
Commission or the NYSE or trading in securities generally on the
NYSE shall have been suspended or limited or minimum prices shall
have been established on such Exchange, (ii) a banking moratorium
shall have been declared either by Federal, New York State or
Iowa authorities or (iii) there shall have occurred any outbreak
or material escalation of hostilities or other calamity or crisis
the effect of which on the financial markets of the United States
is such as to make it, in the judgment of the Representatives,
impracticable to market the Debt Securities.
11. Costs and Expenses. The Company will pay all costs,
expenses and fees incident to the performance of the obligations
of the Company under this Agreement.
12. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities
and other statements of the Company or its officers and of the
Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for
the Debt Securities. The provisions of Sections 7 and 8 hereof
shall survive the termination or cancellation of this Agreement.
13. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the
Representatives, will be mailed, delivered or telegraphed and
confirmed to them, care of ____________________________________
______________________________________; or if sent to the
Company, will be mailed, delivered or telegraphed and confirmed
to it at c/o Equitable of Iowa Companies, 604 Locust Street, P.O.
Street, P.O. Box 1635, Des Moines, Iowa 50306, attention of John
A. Merriman, Esq., General Counsel and Secretary.
14. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons
referred to in Section 8 hereof, and no other person will have
any right or obligation hereunder.
15. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to us the
enclosed duplicate hereof, whereupon this letter and your
acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
Equitable of Iowa Companies
By:________________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
[_________________________]
[_________________________]
By: [___________________]
By:________________________
Name:
Title:
For themselves and the other several
Underwriters named in Schedule I to the
foregoing Agreement.
SCHEDULE I
Principal Amount
of Debt Securities
Underwriters To Be Purchased
____________ __________________
SCHEDULE II
Underwriting Agreement dated:
Registration Statement No.:
Representative(s):
Title, Purchase Price and Description of Debt Securities:
Title:
Principal amount:
Purchase price (include
accrued interest or
amortization, if any):
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, Time and Location:
Type of Offering: [Delayed Offering or Non-Delayed Offering]
Delayed Delivery Arrangements:
Fee:
Minimum principal amount of each contract: $
Maximum aggregate principal amount of all contracts: $
Date referred to in Section 5(a)(vii) after which the Company may
offer or sell debt securities issued or guaranteed by the
Company without the consent of the Representative(s):
Schedule III to the
Underwriting Agreement
Significant Subsidiaries of Equitable of Iowa Companies
_______________________________________________________
Equitable Life Insurance Company of Iowa
USG Annuity & Life Company
Equitable American Insurance Company
Equitable Investment Services Inc.
Locust Street Securities, Inc.
