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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report: September 29, 1994
Date of earliest event reported: September 29, 1994
LINCOLN NATIONAL CORPORATION
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(exact name of registrant as specified in its charter)
Indiana 1-6028 35-1140070
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(State of Incorporation) (Commission File Number) (IRS Employer
Identification No.
200 East Berry Street, Fort Wayne, Indiana 46802-2706
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(Address of principal executive offices) (Zip Code)
219-455-2000
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(Registrant's telephone number)
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ITEM 5. OTHER EVENTS
This form of Debenture (Schedule I) and Underwriting Agreement (Schedule
II) are being filed in connection with the Company's Registration Statement on
Form S-3, File No. 33-55379, and its proposed issuance of $200 million principal
amount of 9-1/8% Debentures due October 1, 2024.
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SIGNATURE PAGE
LINCOLN NATIONAL CORPORATION
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
Lincoln National Corporation
By: RICHARD C. VAUGHAN
-------------------------
Richard C. Vaughan
Senior Vice President and
Chief Financial Officer
By: DONALD L. VAN WYNGARDEN
-------------------------
Donald L. Van Wyngarden
Second Vice President and
Controller
Date: September 29, 1994
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SCHEDULE I
LINCOLN NATIONAL CORPORATION
9 1/8% Debenture due October 1, 2024
[Registered] CUSIP
No. R- U.S.$
Unless this Debenture is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the
Company (as defined below) or its agent for registration of transfer,
exchange, or payment, and any Debenture issued is registered in the
name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede &
Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
Lincoln National Corporation, a corporation organized and existing under
the laws of the State of Indiana (hereinafter called the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to Cede & Co. or registered assigns,
the principal sum of ______________________________ Dollars ($________________)
on October 1, 2024 and to pay interest thereon from October 1, 1994 or from the
most recent interest payment date to which interest has been paid or duly
provided for, semi-annually on April 1 and October 1, in each year, commencing
on April 1, 1995, at the rate of 9 1/8% per annum until the principal hereof is
paid or such payment is duly provided for. The interest so payable and
punctually paid or duly provided for on any interest payment date will be paid
to the person in whose name this Debenture (or one or more predecessor
Debentures) is registered at the close of business on the next preceding March
15 and September 15, respectively, (each respectively a "Record Date"), subject
to certain exceptions as provided in the Indenture. Payment of the principal of,
premium, if any, and interest on, this Debenture will be made at the designated
office or agency of the Company maintained for such purpose in The City of New
York, New York in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debt or,
at the option of the Company, interest so payable may be paid by check to the
order of said Holder mailed to his address appearing on the Security Register.
Any interest not so punctually paid or duly provided for shall be payable as
provided in the Indenture. Interest on this Debenture will be computed on the
basis of a 360-day year of twelve 30-day months.
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Reference is hereby made to the further provisions of this Debenture
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Debenture shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, Lincoln National Corporation has caused this
instrument to be duly executed under its corporate seal.
LINCOLN NATIONAL CORPORATION
By______________________________
Title:
[Corporate Seal]
Attest:
________________________
Secretary
Dated:
Trustee's Certificate of Authentication
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK, as
Trustee
By______________________________
Authorized Signatory
[Reverse of Debenture]
This Debenture is one of a duly authorized issue of Securities of the
Company of a series hereinafter specified, all issued and to be issued under an
Indenture dated as of September 15, 1994 (herein called the "Indenture"),
between the Company and The Bank of New York, as Trustee (herein called the
"Trustee", which term includes any successor Trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holder of the
Securities and the terms upon which the Securities are, and are to be,
authenticated and delivered. The Securities may be issued in one or more
series, the terms of which different series may vary as provided in the
Indenture. This
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Debenture is one of a series of the Securities of the Company designated as its
9 1/8% Debentures due October 1, 2024 (herein called the "Debentures"), limited
in aggregate principal amount to $200,000,000, except as otherwise provided in
the Indenture.
The Company may not redeem any Debentures prior to October 1, 2004. The
Debentures may be redeemed, as a whole or in part, at the election of the
Company at any time on or after October 1, 2004, at the following redemption
prices (expressed as percentages of the principal amount) during the 12-month
period beginning October 1 of the years indicated,
REDEMPTION
----------
YEAR PRICE
---- -----
2004..................... 104.3325%
2005..................... 103.8992%
2006..................... 103.4660%
2007..................... 103.0327%
2008..................... 102.5995%
2009..................... 102.1662%
2010..................... 101.7330%
2011..................... 101.2997%
2012..................... 100.8665%
2013..................... 100.4332%
and thereafter at a redemption price equal to 100% of the principal amount,
together in each case, with accrued interest on the principal amount (except if
the date of redemption is a scheduled payment date) to the date of redemption.
Partial redemption must be in an amount not less than $1,000,000 aggregate
principal amount of the Debentures.
Notice of redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each Holder of Debentures to be redeemed
at his registered address. Debentures in denominations larger than the smallest
authorized denomination may be redeemed in part. On and after the redemption
date, interest ceases to accrue on the Debentures or portions of them called for
redemption.
The Debentures are not entitled to any sinking fund. If an Event of
Default shall occur with respect to the Debentures, the principal of the
Debentures may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture contains provisions for defeasance at any time of the
Debentures, upon which the Company, at its option, shall be deemed to have been
Discharged from its obligations with respect to the Debentures or shall cease to
be under any obligation to comply with certain restrictive covenants of the
Indenture.
Subject to certain exceptions, the Indenture or the Debentures may be
amended or supplemented with the consent of the Holders of at least a majority
in principal amount of the Outstanding Securities affected by such amendment or
supplement voting as one class. Without
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the consent of any Holder, the Company and the Trustee may amend or supplement
the Indenture or the Debentures to, among other things, cure any ambiguity,
defect or inconsistency. Subject to certain exceptions, any past default or
Event of Default may be waived by the Holders of at least a majority in
principal amount of the Outstanding Securities of any series affected on behalf
of the Holders of the Securities of that series or the Holders of at least a
majority in principal amount of all the Outstanding Securities voting as one
class. Any such consent or waiver by the Holder of this Debenture shall be
conclusive and binding upon such Holder and upon all future Holders of this
Debenture and of any Debenture issued upon the transfer hereof or in exchange
herefor or in lieu hereof whether or not notation of such consent or waiver is
made upon this Debenture or upon any Debenture issued upon the transfer hereof
or in exchange herefor or in lieu hereof.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of, premium,
if any, and interest on, this Debenture at the times, place, and rate, and in
the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, this Debenture is transferable on the Security Register of
the Company, upon surrender of this Debenture for transfer at the office or
agency of the Company in The City of New York, New York, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Registrar, duly executed by the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Debentures, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees. The Registrar need not
register the transfer of any Debenture selected for redemption or register the
transfer of any Debenture for a period of 15 days before a selection of
Debentures to be redeemed.
The Debentures are issuable in registered form without coupons in
denominations of $1,000 and integral multiples thereof. As provided in the
Indenture and subject to certain limitations therein set forth, this Debenture
is exchangeable for a like aggregate principal amount of Debentures of different
authorized denominations as requested by the Holder surrendering the same. The
Registrar need not exchange any Debenture selected for redemption or exchange
any Debenture for a period of 15 days before selection of Debentures to be
redeemed.
No service charge will be made for any such transfer or exchange, but
the Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the person in whose name this Debenture is registered as the owner
hereof for the purpose of receiving payment as herein provided and for all other
purposes whether or not this Debenture be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
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No recourse shall be had for the payment of the principal of, premium,
if any, or the interest on, this Debenture or for any claim based hereon or
otherwise in any manner in respect hereof, or in respect of the Indenture,
against any incorporator, shareholder, officer or director, as such, past,
present or future, of the Company or of any predecessor or successor
corporation, whether by virtue of any constitutional provision or statute or
rule of law, or by the enforcement of any assessment or penalty or in any other
manner, all such liability being expressly waived and released by the acceptance
hereof and as part of the consideration for the issue hereof.
All capitalized terms used in this Debenture which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
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<PAGE>
Schedule II
LINCOLN NATIONAL CORPORATION
Underwriting Agreement
Debt Securities, Preferred Stock
and Common Stock
September 29, 1994
Ladies and Gentlemen:
From time to time, Lincoln National Corporation, an Indiana corporation
(the "Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (the "Underwriters" with respect
to such Pricing Agreement and the securities specified therein) the principal
amount of its securities or aggregate number of shares identified in Schedule I
to the applicable Pricing Agreement (the "Securities").
The terms and rights of any particular issuance of Securities shall be as
specified in the Pricing Agreement relating thereto and in or pursuant to the
Indenture or Articles of Incorporation of the Company (including the Articles of
Amendment), as applicable (the "Securities Agreement") and identified in such
Pricing Agreement.
Particular sales of Securities may be made from time to time to the
Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to Underwriters who act without any firm being designated
as their representative. This Underwriting Agreement shall not be construed as
an obligation of the Company to sell any of the Securities or as an obligation
of any of the Underwriters to purchase the Securities. The obligation of the
Company to issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities
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shall be evidenced by the Pricing Agreement with respect to the Securities
specified therein. Each Pricing Agreement shall specify the aggregate principal
amount of such Securities or the total number of shares, as the case may be, the
initial public offering price of such Securities, the purchase price to the
Underwriters of such Securities, the names of the Underwriters of such
Securities, the names of the Representatives of such Underwriter and the
principal amount or number of shares of such Securities to be purchased by each
Underwriter and shall set forth the date, time and manner of delivery of such
Securities and payment therefor. The Pricing Agreement shall also specify (to
the extent not set forth in the Securities Agreement and the registration
statement and prospectus with respect thereto) the terms of such Securities. A
Pricing Agreement shall be in the form of an executed writing (which may be in
counterparts), and may be evidenced by an exchange of telegraphic communications
or any other rapid transmission device designed to produce a written record of
communications transmitted. The obligations of the Underwriters under this
Agreement and each Pricing Agreement shall be several and not joint.
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, each Underwriter that:
(a) 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
on such Form (the file number of which is set forth in Schedule II to the
applicable Pricing Agreement), which has become effective, for the registration
under the Act of the Securities. Such registration statement, as amended at the
date of this Agreement, meets the requirements set forth in Rule 415(a)(1)(x)
under the Act and complies in all other material respects with said Rule. The
Company proposes to file with the Commission pursuant to Rule 424 under the Act
a supplement or supplements to the form of prospectus included in such
registration statement relating to the Securities and the plan of distribution
thereof and has previously advised you of all further information (financial and
other) with respect to the Company to be set forth therein. Such registration
statement, including the exhibits thereto, as amended at the date of this
Agreement, is hereinafter called the "Registration Statement"; such prospectus
in the form in which it appears in the Registration Statement is hereinafter
called the "Basic Prospectus"; and such supplemented form of prospectus, in the
form in which it shall be filed with the Commission pursuant to Rule 424
(including the Basic Prospectus as so supplemented) is hereinafter called the
"Final Prospectus." Any preliminary form of the Final Prospectus which has
heretofore been filed pursuant to Rule 424 is hereinafter called the
"Preliminary Final Prospectus." Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") on or before
the date of this Agreement, or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be; and
any reference herein to the terms " amend, " " amendment " or " supplement "
with respect to the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall be deemed to refer to
and include the filing of any document under the Exchange Act after the date of
this Agreement, or the issue date of the Basic Prospectus, any
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Preliminary Final Prospectus or the Final Prospectus, as the case may be, deemed
to be incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is first filed or
transmitted for filing pursuant to Rule 424 under the Act, when, prior to the
Closing Date (as hereinafter defined), any amendment to the Registration
Statement becomes effective (including the filing of any document incorporated
by reference in the Registration Statement), when any supplement to the Final
Prospectus is filed with the Commission and at the Closing Date, (i) the
Registration Statement, as amended as of any such time, and the Final
Prospectus, as amended or supplemented as of any such time, and, in the case of
Securities issued pursuant to an Indenture, the Indenture will comply in all
material respects with the applicable requirements of the Act, the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the Exchange
Act and the respective rules thereunder and (ii) neither the Registration
Statement, as amended as of any such time, nor the Final Prospectus, as amended
or supplemented as of such time, will contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading; provided,
however, that the Company makes no representations or warranties as to (i) 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 (the "Form T- 1") or (ii) the information contained in or omitted from
the Registration Statement or the Final Prospectus or any amendment thereof or
supplement thereto in reliance upon and in conformity with information relating
to such Underwriter or the underwriting arrangements furnished in writing to the
Company by any Underwriter specifically for use in the Registration Statement
and the Final Prospectus. As of the date hereof, there is no order preventing or
suspending the use of any Preliminary Final Prospectus.
(c) Each document incorporated by reference in the Registration
Statement and the Final Prospectus will comply in all material respects, as
amended at the time the Registration Statement becomes effective, with the
Exchange Act.
(d) The financial statements of the Company and its consolidated
subsidiaries included in the Registration Statement fairly present the financial
condition and results of operations of the Company and its consolidated
subsidiaries as of the dates indicated and the results of operations and changes
in financial position for the periods therein specified; neither the Company nor
any of its consolidated subsidiaries has sustained since the date of the latest
audited financial statements included or incorporated by reference in the
Preliminary Final Prospectus or Final Prospectus any material loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
govenmental action, order or decree, otherwise than as set forth or contemplated
in the Preliminary Final Prospectus or Final Prospectus; and, since the
respective dates as of which information is given in the Registration Statement
and the Basic Prospectus, there has not been any material change in the capital
stock (other than issuances of common stock upon the exercise of outstanding
employee stock options or pursuant to existing employee compensation plans) or
long-term debt of the Company or any of its subsidiaries or any material adverse
change, or any development involving a prospective material adverse change, in
the
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condition (financial or other), earnings, business or properties of the
Company and its consolidated subsidiaries, whether or not arising from
transactions in the ordinary course of business, except as set forth or
contemplated in the Preliminary Final Prospectus or Final Prospectus.
(e) The Company has been duly incorporated and is validly existing as
a corporation under the laws of the jurisdiction of its incorporation, with
power and authority (corporate and other) to own, lease and operate its
properties and to conduct its business as described in the Basic Prospectus and
has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction in
which it owns or leases properties, or conducts any business, so as to require
such qualification, or is subject to no material liability or disability by
reason of the failure to be qualified in any such jurisdiction; and each
subsidiary of the Company organized under the laws of the United States
representing 5% or more of the consolidated earnings before income taxes and
extraordinary items or consolidated total assets of the Company (a "Significant
Subsidiary") has been duly incorporated and is validly existing as a corporation
under the laws of its jurisdiction of incorporation except where the failure to
be so qualified would not have a material adverse effect on the Company and the
subsidiaries taken as a whole.
(f) The Company has an authorized capitalization as set forth in the
Final Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and non-
assessable.
(g) The Securities have been duly authorized, and, when the Securities
are issued and delivered pursuant to this Agreement and the Pricing Agreement
with respect to such Securities, such Securities will have been duly executed,
authenticated, issued and delivered (and, in the case of Securities representing
capital stock of the Company, will be fully paid and nonassessable) and will
constitute valid and legally binding obligations of the Company entitled to the
benefits provided by the applicable Securities Agreement, which will be
substantially in the form filed as an exhibit to the Registration Statement;
such Securities Agreement has been duly authorized and, in the case of
Securities issued pursuant to an Indenture, such Indenture has been duly
qualified under the Trust Indenture Act and, at the Closing Date (as hereinafter
defined) for any Securities, the applicable Securities Agreement will constitute
a valid and legally binding agreement of the Company, enforceable in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
fraudulent transfer, moratorium and other similar laws relating to or affecting
creditors' rights generally and to general principles of equity; and the
applicable Securities Agreement and, upon issuance, the Securities will conform
to the descriptions thereof contained in the Final Prospectus with respect to
such Securities.
(h) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the applicable Securities
Agreement, this Agreement and any Pricing Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with or result in
a breach or violation of any of the terms or provisions of, or constitute a
default under, any material indenture, mortgage, deed of trust, loan agreement
or other material agreement or instrument to which the Company or any subsidiary
is
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a party or by which the Company or any subsidiary is bound or to which any of
the property or assets of the Company or any subsidiary is subject, except for
such conflicts, breaches, violations or defaults as would not, individually or
in the aggregate, have a material adverse effect on the consolidated financial
position of the Company and its subsidiaries or the consummation by the Company
of the transactions contemplated by this Agreement, the applicable Secuities
Agreement and any Delayed Delivery Contracts nor will such action result in any
violation of the provisions of the articles of incorporation or bylaws of the
Company or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company, any subsidiary
or any of its respective properties; and no consent, approval, authorization,
order, registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Securities or the
consummation by the Company of the transactions contemplated by this Agreement,
the applicable Pricing Agreement or the applicable Securities Agreement, except
such as have been, or will have been prior to the time of delivery, obtained
under the Act and in the case of Securities to be issued under an Indenture, the
Trust Indenture Act and such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Securities by the
Underwriters.
(i) Other than as set forth in the Final Prospectus, there are no
legal or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of its
subsidiaries is the subject which would individually or in the aggregate be
reasonably likely to have a material adverse effect on the consolidated
financial position, stockholders' equity or results of operations of the Company
and its subsidiaries; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others.
(j) The Company and its subsidiaries own or possess, or can acquire on
reasonable terms, all material trademarks, service marks and trade names
necessary to conduct the business now operated by them, and neither the Company
nor any of its subsidiaries has received any notice of infringement of or
conflict with asserted rights of others with respect to any trademarks, service
marks or trade names that singly or in the aggregate, would be reasonably likely
to materially adversely affect the conduct of the business, operations,
financial condition or income of the Company and its subsidiaries considered as
a whole.
(k) To the best of the Company's knowledge and belief, the Company has
complied in all material respects with, and the conduct of its business and the
conduct of business by its subsidiaries does not violate in any material respect
any, statute, law, regulation, rule, order or directive of any federal, state or
local governmental authority applicable to the Company and its subsidiaries.
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 to the applicable Pricing Agreement the principal amount
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or number of shares of the Securities set forth opposite such Underwriter's name
in Schedule I to the applicable Pricing Agreement, except that, if Schedule II
to the applicable Pricing Agreement provides for the sale of Securities pursuant
to delayed delivery the respective principal amounts of Securities to be
purchased by the Underwriters shall be as set forth in Schedule I to the
applicable Pricing Agreement less the respective amounts of Contract Securities
determined as provided below. Securities to be purchased by the Underwriters are
herein sometimes called the "Underwriters' Securities" and Securities to be
purchased pursuant to Delayed Delivery Contracts as hereinafter provided are
herein called "Contract Securities."
If so provided in Schedule II to the applicable Pricing Agreement the
Underwriters are authorized to solicit offers to purchase Securities from the
Company pursuant to delayed delivery contracts ("Delayed Delivery Contracts"),
substantially in the form of Annex II hereto but with such changes therein as
the Company may authorize or approve. The Underwriters will endeavor to make
such arrangements and, as compensation therefor, the Company will pay to the
Underwriters, for the account of the Underwriters, on the Closing Date, the
percentage set forth in Schedule II to the applicable Pricing Agreement of the
principal amount of the 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 that are not
prohibited from purchasing the Securities. 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 to the applicable
Pricing Agreement and the aggregate principal amount of Contract Securities may
not exceed the maximum aggregate principal amount set forth in Schedule II to
the applicable Pricing Agreement. The Underwriters will not have any
responsibility in respect of the validity or performance of Delayed Delivery
Contracts. The principal amount of Securities to be purchased by each
Underwriter as set forth in Schedule I to the applicable Pricing Agreement shall
be reduced by an amount which shall bear the same proportion to the total
principal amount of Contract Securities as the principal amount of Securities
set forth opposite the name of such Underwriter bears to the aggregate principal
amount set forth in Schedule I to the applicable Pricing Agreement, 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 Securities to be purchased by all Underwriters
shall be the aggregate principal amount set forth in Schedule I to the
applicable Pricing Agreement less the aggregate principal amount of Contract
Securities.
3. Delivery and Payment. Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in definitive form to the
extent practicable, and in such authorized denominations and registered in such
names as the Representatives may request upon at least forty-eight hours' prior
notice to the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter at the office, on the date
and at the time specified in the applicable Pricing Agreement (or such later
date not later than five business days after such specified date as the
Representatives shall designate), which date
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and time may be postponed by agreement between the Representatives and the
Company or as provided in Section 8 hereof (such date and time of delivery and
payment for the Underwriters' Securities being herein called the "Closing
Date"). Delivery of the Underwriters' Securities shall be made to the
Underwriters for the respective accounts of the several Underwriters against
payment by the several Representatives of the purchase price thereof by
certified or official bank check or checks payable in New York Clearing House
(next day) funds or as otherwise set forth in the applicable Pricing Agreement.
The Company agrees to have the Underwriters' Securities available for
inspection, checking and packaging by the Underwriters in New York, New York,
not later than 1:00 P.M. on the business day prior to the Closing Date.
4. Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the
Company will not file any amendment to the Registration Statement or supplement
(including the Final Prospectus) to the Basic Prospectus and will not provide
additional information to the Commission unless the Company has furnished you a
copy for your review and provided you with a reasonable opportunity to comment
on such proposed amendment, supplement or information prior to filing or
submitting the same and will not file any such proposed amendment or supplement
and will not submit such additional information to which you reasonably object.
The Company will promptly advise the Underwriters and will promptly confirm such
advice in writing (i) when the Final Prospectus shall have been filed (or
transmitted for filing) with the Commission pursuant to Rule 424, (ii) when any
amendment to the Registration Statement relating to the Securities shall have
been filed or become effective, (iii) of any request by the Commission for any
amendment of the Registration Statement or amendment of or supplement to the
Final Prospectus or for any additional information, (iv) 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 such purpose
and (v) of the receipt by the Company of any notification with respect to the
suspension of the qualification of Securities for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose. 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.
(b) If, at any time when a prospectus relating to Securities is
required to be delivered under the Act, any event occurs as a result of which
the Final Prospectus as then amended or 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 for any other reason it shall be necessary
during the same period to amend or supplement the Final Prospectus or to file
under the Exchange Act any document incorporated by reference in the Final
Prospectus in order to comply with the Act or the Exchange Act or the respective
rules thereunder, the Company promptly will prepare and file with the
Commission, subject to the first sentence of paragraph (a) of this Section 4, an
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<PAGE>
amendment or supplement which will correct such statement or omission or an
amendment which will effect such compliance.
(c) As soon as practicable but in any event not later than eighteen
months after the effective date of the Registration Statement (as defined in
Rule 158(c) under the Act), the Company will make generally available to its
securityholders and to the Underwriters a consolidated earnings statement or
statements of the Company and its subsidiaries (which need not be audited) which
will satisfy the provisions of Section 11(a) of the Act and the rules and
regulations thereunder (including at the option of the Company Rule 158 under
the Act).
(d) The Company will furnish to the Underwriters and counsel for the
Underwriters, without charge, one signed copy of the Registration Statement
(including exhibits thereto) and such number of conformed copies of the
Registration Statement and of each amendment thereto which shall become
effective on or prior to the Closing Date 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
amendments thereof and supplements thereto as the Underwriters may reasonably
request.
(e) The Company will promptly from time to time arrange for the
qualification of the Securities for sale under the laws of such jurisdictions as
the Representatives may reasonably designate, will maintain such qualifications
in effect so long as required for the distribution of the Securities, and will
arrange for the determination of the legality of the Securities for purchase by
institutional investors; provided that in connection therewith the Company shall
not be required to qualify as a foreign corporation or to execute a general
consent to service of process in any jurisdiction or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise subject.
(f) Until the business day following the Closing Date, the Company
will not, without the consent of the Underwriters, offer, sell or contract to
sell, or announce the offering of, any debt securities covered by the
Registration Statement or any other registration statement filed under the Act.
(g) The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act in connection
with the preparation, printing and filing of the Registration Statement, Basic
Prospectus, Preliminary Final Prospectus and the Final Prospectus and amendments
and supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, any Pricing Agreement, any Securities
Agreement, any Blue Sky Survey, any Legal Investment Memoranda and any other
documents in connection with the offering, purchase, sale and delivery of the
Securities; (iii) all expenses in connection with the qualification of the
Securities for offering and sale under state securities and Blue Sky laws as
provided in Section 4(e) hereof, including any reasonable fees and disbursements
of counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky and
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<PAGE>
legal investment surveys; (iv) any fees charged by securities rating services
for rating the Securities; (v) the cost of preparing the Securities; (vi) the
fees and expenses of any Trustee, Paying Agent, or Transfer Agent and counsel
for any such Trustee, Paying Agent or Transfer Agent in connection with a
Securities Agreement and the Securities issued pursuant to any Securities
Agreement; and (vii) all other costs and expenses incident to the performance of
its obligations hereunder which are not otherwise specifically provided for in
this Section. It is understood, however, that, except as provided in this
Section, Section 6 and Section 7 hereof, the Underwriters will pay all of their
own costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Securities by them, and any advertising expenses connected
with any offers they may make.
(h) The Company will prepare the Final Prospectus as amended and
supplemented in relation to the applicable Securities in a form approved by the
Representatives and will file such Prospectus pursuant to Rule 424(b) under the
Act not later than the Commission's close of business on the second business day
following the execution and delivery of the Pricing Agreement relating to the
applicable Securities or, if applicable, such other time as may be required by
Rule 424(b) and file promptly and simultaneously provide each Underwriter with a
copy of all reports and any definitive proxy or information statements required
to be filed by the Company with the Commission pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act for so long as the delivery of a prospectus is
required in connection with the offering or sale of such Securities.
(i) During a period of five years from the effective date of the
Registration Statement, to furnish to the Representatives copies of all reports
or other communications (financial or other) furnished to stockholders, and
deliver to each Underwriter (i) as soon as they are available, copies of any
reports and financial statements furnished to or filed with the Commission or
any national securities exchange on which the Securities or any class of
securities of the Company is listed; and (ii) such additional information
concerning the business and financial condition of the Company as the
Representatives may from time to time reasonably request (provided such
financial statements and reports are otherwise furnished to its stockholders
generally or to the Commission).
5. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Underwriters' Securities under the Pricing
Agreement relating to such Securities shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein as of
the date hereof, as of the date of the effectiveness of any amendment to the
Registration Statement filed prior to the Closing Date with respect to such
Securities (including the filing of any document incorporated by reference
therein) and as of the Closing Date with respect to such Securities, 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) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall
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<PAGE>
have been instituted or threatened; all requests by the Commission for
additional information shall have been responded to the satisfaction of the
Representatives; and the Final Prospectus with respect to such Securities shall
have been filed or transmitted for filing with the Commission pursuant to Rule
424(b) not later than the Commission's close of business on the second day
following the execution and delivery of the Pricing Agreement relating to the
applicable Securities or, if applicable, such other time as may be required by
Rule 424(b).
(b) Subsequent to the execution and delivery of this Agreement or a
related Pricing Agreement and prior to the Closing Date, there shall not have
occurred any downgrading, nor shall notice have been given of any intended or
potential downgrading or other review in the rating accorded any securities of,
or guaranteed by, the Company by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2) under the
Act.
(c) The Company shall have furnished to the Underwriters the opinion
of Jack D. Hunter, Esq. or the then General Counsel of the Company, dated the
Closing Date, to the effect that:
(i) The Company and each Significant Subsidiary of the Company
has been duly incorporated and is a duly existing corporation under
the laws of its respective state of incorporation, with corporate
power and authority to own its properties and conduct its business as
described in the Final Prospectus; and neither the Company nor any
such subsidiary is required to be qualified to do business as a
foreign corporation in any other jurisdiction in which failure to so
qualify would have a material adverse effect on the business of the
Company;
(ii) The applicable Securities Agreement has been duly
authorized, executed and delivered, and, in the case of the Articles
of Amendment, if applicable, has been filed with the Secretary of
State of the State of Indiana and constitutes a legal, valid and
binding instrument enforceable against the Company in accordance with
its terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to time in effect);
(iii) The Securities have been duly authorized; the
Underwriters' Securities have been duly executed, authenticated,
issued and delivered; the Underwriters' Securities constitute, and any
Contract Securities, when executed, authenticated, issued and
delivered in the manner provided in the applicable Securities
Agreement and sold pursuant to any Delayed Delivery Contracts, will
constitute, valid and legally binding obligations of the Company
entitled to the benefits and security provided by the applicable
Securities Agreement; and the Underwriters' Securities conform, and
the Contract Securities, when so issued and delivered and sold, will
conform, to the description thereof contained in the Final Prospectus;
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<PAGE>
(iv) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement or any
Delayed Delivery Contract in connection with the issuance or sale of
the Securities by the Company, except such as have been obtained and
made under the Act and the Trust Indenture Act and such as may be
required under state securities laws;
(v) The issue and sale of the Securities and the compliance by
the Company with all of the provisions of the Securities, the
applicable Securities Agreement, this Agreement, the applicable
Pricing Agreement and any Delayed Delivery Contracts, and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any material
indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument to which, to the knowledge of such counsel,
the Company or any such subsidiary is a party or by which the Company
or any such subsidiary is bound or to which any of the property or
assets of the Company or any such subsidiary is subject, except for
such conflicts, breaches, violations or defaults as would not,
individually or in the aggregate, have a material adverse effect on
the consolidated financial position of the Company and its
subsidiaries or the consummation by the Company of the transactions
contemplated by this Agreement, the applicable Secuities Agreement and
any Delayed Delivery Contracts, nor will such action result in any
violation of the provisions of the articles of incorporation or by-
laws of the Company or any statute, order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company, any such subsidiary or any of its respective properties;
(vi) The descriptions in the Registration Statement and Final
Prospectus of statutes, legal and governmental proceedings and
contracts and other documents are accurate in all material respects
and fairly present the information required to be shown; no legal or
governmental proceedings are required to be described in the Final
Prospectus which are not described as required or of any contracts or
documents of a character required to be described in the Registration
Statement or Final Prospectus or to be filed as exhibits to the
Registration Statement which are not described and filed as required;
it being understood that such counsel need express no opinion as to
the financial statements or other financial data contained in the
Registration Statement or the Final Prospectus;
(vii) This Agreement, the Pricing Agreement and any Delayed
Delivery Contracts have been duly authorized, executed and delivered
by the Company; and
(viii) Such counsel has no reason to believe that any of the
Registration Statement, the Final Prospectus and any amendment or
supplement, as of the
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<PAGE>
respective effective date or issue dates 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, and that the Final Prospectus, as amended or
supplemented as of the Closing Date, contained any untrue statement of
a material fact or omitted to state any material fact necessary to
make the statements therein in light of the circumstances under which
they were made not misleading; provided, that such counsel need render
no opinion as to that portion of the Registration Statement which
shall constitute the Form T-1.
Solely for purposes of rendering the opinion referred to in (ii)
above, Jack D. Hunter, Esq. or the then General Counsel of the Company
may rely, as to matters of New York law, on the opinion of Sullivan &
Cromwell referred to below.
(d) The Underwriters shall have received an opinion, dated such
Closing Date, of Gardner, Carton & Douglas, counsel for the Company, to the
effect that:
(i) The Company has been duly incorporated and is a duly
existing corporation under the laws of the State of Indiana, with
corporate power and authority to own its properties and conduct its
business as described in the Final Prospectus; and the Company is not
required to be qualified to do business as a foreign corporation in
any other jurisdiction in which the failure to so qualify would have a
material adverse effect on the condition (financial or otherwise) of
the Company;
(ii) The applicable Securities Agreement has been duly
authorized, executed and delivered, and, in the case of an Articles of
Amendment, if applicable, has been filed with the Secretary of State
for the State of Indiana and constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with its
terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to time in effect) and
the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The Securities have been duly authorized; the
Underwriters' Securities have been duly executed, authenticated,
issued and delivered; the Underwriters' Securities constitute, and any
Contract Securities, when executed, authenticated, issued and
delivered in the manner provided in the applicable Securities
Agreement and sold pursuant to any Delayed Delivery Contracts, will
constitute, valid and legally binding obligations of the Company
entitled to the benefits and security provided by the applicable
Securities Agreement; and the Underwriters' Securities conform, and
the Contract Securities, when so issued and delivered and sold, will
conform, to the description thereof contained in the Final Prospectus;
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<PAGE>
(iv) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement, the
Pricing Agreement, the Securities Agreement or any Delayed Delivery
Contract in connection with the issuance or sale of the Securities by
the Company, except such as have been obtained and made under the Act
and the Trust Indenture Act and such as may be required under state
securities laws;
(v) The issue and sale of the Securities and the compliance by
the Company with all of the provisions of the Securities, the
applicable Securities Agreement, this Agreement, the applicable
Pricing Agreement and any Delayed Delivery Contracts, and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any material
indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument to which, to the knowledge of such counsel,
the Company or any Significant Subsidiary is a party or by which the
Company or any such subsidiary is bound or to which any of the
property or assets of the Company or any such subsidiary is subject,
except for such conflicts, breaches, violations or defaults as would
not, individually or in the aggregate, have a material adverse effect
on the consolidated financial position of the Company and its
subsidiaries or the consummation by the Company of the transactions
contemplated by this Agreement, the applicable Secuities Agreement and
any Delayed Delivery Contracts, nor will such action result in any
violation of the provisions of the articles of incorporation or by-
laws of the Company or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company, any
such subsidiary or any of its respective properties;
(vi) (a) The Registration Statement has become effective under
the Act, and, to the best of the knowledge of such counsel after due
inquiry, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated under the
Act, and the Registration Statement and the Final Prospectus, and each
amendment or supplement thereto, as of their respective effective or
issue dates, complied as to form in all material respects with the
requirements of the Act and the respective rules thereunder and each
document incorporated by reference in the Registration Statement and
the Final Prospectus as amended as of the effective date of the
Registration Statement and the date of any amendment or supplement
thereto, complied as to form in all material respects with the
Exchange Act; (b) such counsel have no reason to believe that either
the Registration Statement or the Final Prospectus, or any such
amendment or supplement, as of such respective dates, 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 as amended or
supplemented as of the Closing Date, contained any untrue statement of
a material fact or
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<PAGE>
omitted to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, that such counsel need render no opinion under
this clause (b) as to that portion of the Registration Statement which
shall constitute the Form T-1; and (c) after due inquiry, such counsel
do not know of any legal or governmental proceedings required to be
described in the Final Prospectus which are not described as required
in the Registration Statement or Final Prospectus or to be filed as
exhibits to the Registration Statement which are not described and
filed as required; it being understood that such counsel need express
no opinion as to the financial statements or other financial data
contained in the Registration Statement or the Final Prospectus;
(vii) This Agreement, the Pricing Agreement and any Delayed
Delivery Contracts have been duly authorized, executed and delivered
by the Company;
(viii) The securities issuable on conversion or exchange of the
Securities, if any, have been duly authorized and reserved for
issuance upon conversion or exchange of the Securities and, when
issued upon such conversion or exchange in accordance with the terms
of the applicable Securities Agreement, will have been validly issued
and will be fully paid and nonassessable, and the issuance of such
securities is not subject to any preemptive or similar rights;
(ix) The statements in the Final Prospectus under "Description
of Debt Securities" and "Description of Preferred Stock and Common
Stock", insofar as such statements constitute a summary of documents
referred to therein, fairly present the information called for with
respect to such documents;
(x) If such Securities are intended to be listed, the Securities
and the Securities issuable on conversion or exchange of Securities,
if any, shall have been approved for listing on the intended exchange
or market, subject to official notice of issuance.
In rendering such opinion, Gardner, Carton & Douglas may rely, as
to the incorporation of the Company and all other matters of Indiana
law, on the opinion of Jack D. Hunter, Esq. referred to above. Solely
for purposes of rendering the opinion referred to in (ii) above,
Gardner, Carton & Douglas may rely, as to matters of New York law, on
the opinion of Sullivan & Cromwell referred to below.
(e) The Underwriters shall have received from Sullivan & Cromwell,
counsel for the Underwriters, such opinion or opinions, dated the Closing Date,
with respect to the issuance and sale of the Securities, the Securities
Agreement, any Delayed Delivery Contracts, the Registration Statement, the Final
Prospectus and other related matters as the Underwriters may reasonably require,
and the Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
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<PAGE>
(f) The Company shall have furnished to the Underwriters a
certificate of the Company, signed by the Chairman of the Board, the President
or an Executive Vice 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 and this Agreement and that to the best of their knowledge after
reasonable investigation:
(i) The representations and warranties of the Company in this
Agreement are true and correct 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, as amended, 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 latest audited financial
statements included or incorporated by reference in the Preliminary
Final Prospectus or Final Prospectus, neither the Company nor any of
its consolidated subsidiaries has sustained any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or govenmental action, order or decree, and there
has been no material adverse change in the condition (financial or
other), earnings, business or properties of the Company and its
consolidated subsidiaries, whether or not arising from transactions in
the ordinary course of business, except as set forth in or
contemplated in the Final Prospectus.
(g) At the Closing Date, Ernst & Young LLP shall have furnished to
the Underwriters a letter or letters (which may refer to letters previously
delivered to one or more of the Underwriters), dated as of the Closing Date, in
form and substance satisfactory to the Underwriters, confirming that they are
independent public accountants with respect to the Company and the Company's
subsidiaries within the meaning of the Act and the Exchange Act and the
respective applicable published rules and regulations thereunder and stating in
effect that:
(i) In their opinion the audited financial statements and
financial schedules included or 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) They have made a review of the unaudited interim
financial statements included in the Registration Statement in
accordance with standards established by the American Institute of
Certified Public Accountants;
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<PAGE>
(iii) On the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial statements
of the Company, inquiries of officials of the Company who have
responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused them
to believe that:
(A) Any unaudited financial statements of the Company
included or incorporated in the Registration Statement and the
Final Prospectus do not 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 or
are not in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that
of the audited financial statements of the Company in the
Registration Statement and the Final Prospectus;
(B) The amounts included in any unaudited 'capsule'
information included or incorporated in the Registration
Statement and the Final Prospectus do not agree with the amounts
set forth in the unaudited financial statements of the Company
for the same periods or were not determined on a basis
substantially consistent with that of the corresponding amounts
in the audited financial statements of the Company included or
incorporated in the Registration Statement and the Final
Prospectus;
(C) At the date of the latest available balance sheet read
by such accountants, and at a subsequent specified date not more
than five days prior to the date of this Agreement, there was any
decrease in the total capital and surplus of the Company and its
subsidiaries consolidated, any change in the Common Stock or
Preferred Stock or any increase in total short-term or long-term
debt of the Company and its subsidiaries consolidated or, at the
date of the latest available balance sheet read by such
accountants, there was any decrease in consolidated total assets,
as compared with amounts shown on the latest balance sheet
included in the Final Prospectus; or
(D) For the period from the closing date of the latest
income statement included in the Final Prospectus to the closing
date of the latest available income statement read by such
accountants there were any decreases, as compared with the
corresponding period of the previous year and with the period of
corresponding length ended the date of the latest income
statement included in the Final Prospectus, in consolidated
revenues, earnings before cumulative effect of accounting
changes, the total or per share amounts of consolidated net
income or in such other items as the Representatives may
reasonably request;
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<PAGE>
except in all cases set forth in clauses (C) and (D) above for
changes or decreases which the Final Prospectus discloses have
occurred or may occur or which are described 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 Underwriters; and
(iv) They have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in the Registration Statement and the Final
Prospectus (in each case to the extent that such dollar amounts,
percentages and other financial information are derived from the
general accounting records of the Company and its subsidiaries subject
to the internal controls of the Company's accounting system or are
derived directly from such records by analysis or computation) with
the results obtained from inquiries, a reading of such general
accounting records and other procedures specified in such letter and
have found such dollar amounts, percentages and other financial
information to be in agreement with such results, excluding any
questions of legal interpretation.
References to the Registration Statement and the Final Prospectus in
this paragraph (g) are to such documents as amended and supplemented at the date
of the letter.
In addition, at the time a Pricing Agreement is executed, Ernst &
Young LLP shall have furnished to the Underwriters a letter or letters, dated
the date of such Pricing Agreement, in form and substance satisfactory to the
Underwriters, to the effect set forth above.
Subsequent to the respective dates as of which information is given in the
Registration Statement and the Final Prospectus, there shall not have been (i)
any material change or decrease in those items specified in the letter or
letters referred to in paragraph (g) of this Section 5 or (ii) any change, or
any development involving a prospective material adverse change, in or affecting
the condition (financial or other), earnings, 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 Underwriters, to make it
impractical or inadvisable to proceed with the offering or the delivery of the
Securities as contemplated by the Registration Statement and the Final
Prospectus.
(h) Prior to the Closing Date, the Company shall have furnished to
the Underwriters such further information, certificates and documents as the
Underwriters may reasonably request.
(i) 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.
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If any of the conditions specified in this Section 5 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 Underwriters and its counsel, this Agreement and all
obligations of the Underwriters hereunder may be cancelled at, or at any time
prior to, the Closing Date by the Underwriters. Notice of such cancellation
shall be given to the Company in writing or by telephone or telegraph confirmed
in writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 5 hereof is not satisfied, because of
any termination pursuant to Section 9 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 out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities.
7. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless 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 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
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that (i) 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 relating to such Underwriter or the
underwriting arrangements furnished to the Company by such Underwriter
specifically for use in the Basic Prospectus, any Preliminary Prospectus and the
Final Prospectus, and (ii) such indemnity with respect to the Basic Prospectus
or any Preliminary Final Prospectus shall not inure to the benefit of any
Underwriter (or any person controlling such Underwriter) from whom the person
asserting any such loss, claim, damage or liability purchased the Securities
which are the subject thereof if such person did not receive a copy of the Final
Prospectus excluding documents incorporated therein by reference at or prior to
the confirmation
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<PAGE>
of the sale of such Securities to such person in any case where such delivery is
required by the Act, if such Underwriter failed to make efforts generally
consistent with the then prevailing industry practice to effect such delivery
and the Company had previously furnished copies thereof to such Underwriter and
the loss, claim, damage or liability of such Underwriter results from the untrue
statement or alleged untrue statement or omission or alleged omission of a
material fact contained in the Basic Prospectus or any Preliminary Final
Prospectus which was corrected in the Final Prospectus. This indemnity agreement
will be in addition to any liability which the Company may otherwise have.
(b) 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, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter or the
underwriting arrangements furnished to the Company by such Underwriter
specifically for use 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.
(c) Promptly after receipt by an indemnified party under Section 7(a)
or Section 7(b) 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 Section 7(a) or Section 7(b), notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may have to
any indemnified party otherwise than under Section 7(a) or Section 7(b). In case
any such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein, and to the extent that it may elect by written
notice delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof, with counsel
satisfactory to such indemnified party; provided, however, that if the
defendants in 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, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so as to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Underwriters in the case of paragraph (a) of
this Section 7, representing the indemnified parties under such paragraph (a)
who are parties to such action), (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to
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<PAGE>
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if clause (i) or (iii) is applicable, such
liability shall be only in respect of the counsel referred to in such clause (i)
or (iii).
(d) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
of the Securities on the other from the offering of the Securities to which such
loss, claim, damage or liability (or action in respect thereof) relates. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company on the one hand and the Underwriters of the
Securities on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or action in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and such Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from such offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by such Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or such Underwriters on the other and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this subsection
(d) shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the applicable Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the
Underwriters for Securities in this subsection (d) to contribute are several in
proportion to their respective obligations with respect to such Securities and
not joint.
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<PAGE>
8. Default by an Underwriter. (a) If any Underwriter shall default in its
obligation to purchase the Securities which it has agreed to purchase under the
Pricing Agreement relating to such Securities, the Representatives may in their
discretion arrange for themselves or another party or other parties to purchase
such Securities on the terms contained herein. If within thirty-six hours after
such default by any Underwriter the Representatives do not arrange for the
purchase of such Securities, then the Company shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties satisfactory to the Representatives to purchase such Securities on such
terms. In the event that, within the respective prescribed period, the
Representatives notify the Company that they have so arranged for the purchase
of such Securities, or the Company notifies the Representatives that it has so
arranged for the purchase of such Securities, the Representativees or the
Company shall have the right to postpone the Closing Date for such Securities
for a period of not more than seven days, in order to effect whatever changes
may thereby be made necessary in the Registration Statement or the Prospectus as
amended or supplemented, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in the opinion of the
Representatives may thereby be made necessary. The term "Underwriter" as used
in this Agreement shall include any person substituted under this Section 8 with
like effect as if such person had originally been a party to the Pricing
Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by the Representatives
and the Company as provided in subsection (a) above, the aggregate principal
amount of such Securities which remains unpurchased does not exceed one-eleventh
of the aggregate principal amount of the Securities, then the Company shall have
the right to require each non-defaulting Underwriter to purchase the principal
amount of Securities which such Underwriter agreed to purchase under the Pricing
Agreement relating to such Securities and, in addition, to require each non-
defaulting Underwriter to purchase its pro rata share (based on the principal
amount of Securities which such Underwriter agreed to purchase under such
Pricing Agreement) of the Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by the Representatives
and the Company as provided in subsection (a) above, the aggregate principal
amount of Securities which remains unpurchased exceeds one-eleventh of the
aggregate principal amount of the Securities, as referred to in subsection (b)
above, or if the Company shall not exercise the right described in subsection
(b) above to require non-defaulting Underwriters to purchase Securities of a
defaulting Underwriter or Underwriters, then the Pricing Agreement relating to
such Securities shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
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<PAGE>
9. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Underwriters, by notice given to the Company prior to
delivery of and payment for the Securities, if prior to such time (i) trading in
the Company's Common Stock shall have been suspended or materially limited by
the Commission or the New York Stock Exchange or trading in securities generally
on the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (ii) a banking moratorium
shall have been declared either by Federal or New York State authorities or
(iii) there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets in the United States or any calamity or crisis that,
in the judgment of the Underwriters, makes it impracticable or inadvisable to
market the Securities in the manner contemplated.
10. Representations and Indemnities to Survive. The respective agreement,
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 7 hereof, and will
survive delivery of and payment for the Securities. The provisions of Sections
6 and 7 hereof shall survive the termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Underwriters, will be mailed,
delivered, telecopied or telegraphed and confirmed to them, at the address
specified in Schedule I hereto; or, if sent to the Company, will be mailed,
delivered, telecopied or telegraphed to and confirmed with it at Lincoln
National Corporation, 200 East Berry Street, Fort Wayne, Indiana 46802, telecopy
number (219) 455-1785, attention of the Legal Department.
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<PAGE>
12. 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 7 hereof,
and no other person will have any right or obligation hereunder.
13. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Very truly yours,
Lincoln National Corporation
By: RICHARD C. VAUGHAN
-------------------------
Richard C. Vaughan
Senior Vice President and
Chief Financial Officer
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<PAGE>
ANNEX I
-------
Pricing Agreement
-----------------
________, 1994
Ladies and Gentlemen:
Lincoln National Corporation, an Indiana corporation (the "Company"),
proposes, subject to the terms and conditions stated herein (this "Agreement")
and in the Underwriting Agreement, dated September ____, 1994 (the "Underwriting
Agreement") executed by the Company, to issue and sell to the Underwriters named
in Schedule I hereto (the '"Underwriters") the Securities specified in Schedule
II hereto (the "Designated Securities"). Each of the provisions of the
Underwriting Agreement is incorporated herein by reference in its entirety, and
shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein; and each of the representations
and warranties set forth therein shall be deemed to have been made at and as of
the date of this Agreement, except that each representation and warranty which
refers to the Final Prospectus in Section 2 of the Underwriting Agreement shall
be deemed to be a representation or warranty as of the date of the Underwriting
Agreement in relation to the Final Prospectus (as therein defined), and also a
representation and warranty as of the date of this Agreement in relation to the
Final Prospectus as amended or supplemented relating to the Designated
Securities which are the subject of this Agreement. Each reference to the
Representatives herein and in the provisions of the Underwriting Agreement so
incorporated by reference shall be deemed to refer to you. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are used herein as
therein defined. The Representatives designated to act on behalf of the
Representatives and on behalf of each of the Underwriters of the Designated
Securities pursuant to the Underwriting Agreement and the address of the
Representatives are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the Basic
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the principal amount or the number of shares, as the case may be, of Designated
Securities set forth opposite the name of such Underwriter in Schedule I hereto.
<PAGE>
If the foregoing is in accordance with your understanding, please sign and
return to us six counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, constitute a binding agreement between each of the Underwriters and
the Company. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is or will be pursuant to the authority set forth in a
form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination upon request, but without warranty on the part of
the Representatives as to the authority of the signers hereof.
Very truly yours,
LINCOLN NATIONAL CORPORATION
By:________________________________
Accepted as of the date hereof:
By:___________________________
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<PAGE>
SCHEDULE I
Principal Amount
or Number of Shares
of Securities to
Underwriters Be Purchased
- ------------ ----------------
$
Total............. $
<PAGE>
SCHEDULE II
Underwriting Agreement dated September ___, 1994
Registration Statement No. _____________
Underwriters:
Title, Purchase Price and Description of Securities:
Title:
Aggregate principal amount:
Number of Shares:
Price to the public:
Purchase price (include accrued interest or amortization, if any):
Sinking fund provisions:
Redemption provisions:
Other provisions:
Maturity:
Interest Rate:
Interest Payment Dates:
Closing Date, Time and Location:
Delayed Delivery Arrangements:
Modification of items to be covered by the letter from Ernst & Young LLP
delivered pursuant to Section 5(g) at the time this Agreement is executed:
Addresses of Underwriters for purposes of this Agreement:
<PAGE>
ANNEX II
--------
Delayed Delivery Contract
___________ ___. _____
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Lincoln National
Corporation (the "Company"), and the Company agrees to sell to the undersigned,
on _________ ___, 19__ (the "Delivery Date"), $ _________ principal amount
[____________ shares] of the Company's ____________ (the "Securities") offered
by the Company's Prospectus dated _________ ___, 19__, related Prospectus
Supplement dated _________ ___, 19__, receipt of a copy of which is hereby
acknowledged, at a purchase price of _____% of the principal amount thereof,
plus [accrued interest] [amortization of original issue discount], if any,
thereon from _________ ___, 19__, to the date of payment and delivery,
$_____________ per share and on the further terms and conditions set forth in
this contract.
Payment for the Securities to be purchased by the undersigned shall be
made on or before 11:00 AM, New York City time, on the Delivery Date to or upon
the order of the Company in New York Clearing House (next day) funds, at your
office or at such other place as shall be agreed between the Company and the
undersigned, upon delivery to the undersigned of the Securities in definitive
fully registered form and in such authorized denominations and registered in
such names as the undersigned may request by written or telegraphic
communication addressed to the Company not less than five full business days
prior to the Delivery Date. If no request is received, the Securities will be
registered in the name of the undersigned and issued in a denomination equal to
the aggregate principal amount of Securities to be purchased by the undersigned
on the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date, and the obligation of the Company to sell
and deliver Securities on the Delivery Date, shall be subject to the conditions
(and neither party shall incur any liability by reason of the failure thereof)
that (1) the purchase of Securities to be made by the undersigned, which
purchase the undersigned represents is not prohibited on the date hereof, shall
not on the Delivery Date be prohibited under the laws of the jurisdiction to
which the undersigned is subject, and (2) the Company, on or before the Delivery
Date, shall have sold to certain underwriters (the "Underwriters") such
principal amount of the Securities as is to be sold to them pursuant to the
Underwriting Agreement referred to in the Prospectus and Prospectus Supplement
mentioned above. Promptly after completion of such sale to the Underwriters,
the
<PAGE>
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by a copy of the opinion of counsel for the
Company delivered to the Underwriters in connection therewith. The obligation of
the undersigned to take delivery of and make payment for the Securities, and the
obligation of the Company to cause the Securities to be sold and delivered,
shall not be affected by the failure of any purchaser to take delivery of and
make payment for the Securities pursuant to other contracts similar to this
contract.
The undersigned represents and warrants that, as of the date of this
contract, the undersigned is not prohibited from purchasing the Securities
hereby agreed to be purchased by it under the laws of the jurisdiction or
jurisdictions to which the undersigned is subject.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract is
acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned, as of the date first above written,
when such counterpart is so mailed or delivered.
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<PAGE>
This agreement shall be governed by and construed in accordance with
the laws of the State of New York.
________________________________
(Name of Purchaser)
(Signature and Title of Officer)
________________________________
Address
Accepted:
LINCOLN NATIONAL CORPORATION
By:__________________________
(Authorized Signature)
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