SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported): May 28, 2003
THE ALLSTATE CORPORATION
(Exact name of Registrant as Specified in Charter)
Delaware 1-11840 36-3871531
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(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
organization)
2775 Sanders Road
Northbrook, Illinois 60062
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(Address of Principal Executive Offices) Zip
Registrant's telephone number, including area code: (847) 402-5000
N/A
(Former Name or Former Address if Changed Since Last Report)
Item 5. OTHER EVENTS
Certain exhibits are filed herewith in connection with the Prospectus Supplement
dated May 28, 2003 to the Prospectus dated June 19, 2000, filed as part of the
Registration Statement on Form S-3 (Registration No. 333-39640; declared
effective on June 30, 2000) filed by The Allstate Corporation (the "Company")
with the Securities and Exchange Commission covering Debt Securities issuable
under an Indenture relating to Senior Debt Securities, dated as of December 16,
1997, between the Company and U.S. Bank National Association (successor in
interest to State Street Bank and Trust Company) as amended by the Third
Supplemental Indenture dated as of July 23, 1999 and the Sixth Supplemental
Indenture dated as of June 12, 2000.
On May 28, 2003, the Company executed an Underwriting Agreement (the
"Underwriting Agreement") with Goldman, Sachs & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated and certain other underwriters named therein.
Pursuant to the Underwriting Agreement, the Company is issuing $400,000,000
principal amount of 5.350% Senior Notes Due 2033 (the "Securities") under a
Tenth Supplemental Indenture, to be dated as of June 2, 2003 (the "Tenth
Supplemental Indenture"). The Underwriting Agreement, the form of the Tenth
Supplemental Indenture and an opinion of counsel are filed as exhibits hereto.
The form of the Securities is included as Exhibit A to the form of the Tenth
Supplemental Indenture.
Item 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits
EXHIBIT NO. DESCRIPTION
1 Underwriting Agreement, dated as of May 28, 2003, between the
Company and Goldman, Sachs & Co., Merrill Lynch, Pierce, Fenner
& Smith Incorporated and certain other underwriters.
4.1 Form of Tenth Supplemental Indenture between the Company and
the Trustee, including the form of the Securities as Exhibit A.
5.1 Opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P.
12 Computation of Earnings to Fixed Charges Ratio
SIGNATURE
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.
THE ALLSTATE CORPORATION
By: /s/ Emma M. Kalaidjian
--------------------------------
Name: Emma M. Kalaidjian
Title: Assistant Secretary
Dated: May 29, 2003
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
1 Underwriting Agreement, dated as of May 28, 2003, between the
Company and Goldman, Sachs & Co., Merrill Lynch, Pierce, Fenner
& Smith Incorporated and certain other underwriters.
4.1 Form of Tenth Supplemental Indenture between the Company and
the Trustee, including the form of the Securities as Exhibit A.
5.1 Opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P.
12 Computation of Earnings to Fixed Charges Ratio
EXECUTION COPY
THE ALLSTATE CORPORATION
$400,000,000 5.350% Senior Notes Due 2033
----------------------
UNDERWRITING AGREEMENT
----------------------
New York, New York
May 28, 2003
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
c/o Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Ladies and Gentlemen:
The Allstate Corporation, a Delaware corporation (the "Company"), proposes
to issue and sell to the several Underwriters named in Schedule II hereto (the
"Underwriters"), for whom you (the "Representatives") are acting as
representatives, $400,000,000 principal amount of its 5.350% Senior Notes Due
2033 registered under the Registration Statement referred to in Section 1(a)
below (the "Securities"), to be issued pursuant to the provisions of an
Indenture, dated as of December 16, 1997, as amended by the Third Supplemental
Indenture, dated as of July 23, 1999, and the Sixth Supplemental Indenture,
dated as of June 12, 2000, and as supplemented by the Tenth Supplemental
Indenture, to be dated as of June 2, 2003 (as so amended and supplemented, the
"Indenture"), between the Company and U.S. Bank National Association (as
successor to State Street Bank and Trust Company), as Trustee (the "Trustee").
1. Representations and Warranties. The Company represents and warrants to,
and agrees with, each of the Underwriters that:
(a) The Company meets the requirements for the 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 Form S-3 (No. 333-39640) under the Act, which has become effective, for the
registration under the Act of the Securities (such registration statement,
including the exhibits thereto, as amended at the date of this Agreement, is
hereinafter called the "Registration Statement"). No stop order suspending the
effectiveness of the Registration Statement is in effect, and no proceedings for
such purpose are pending before or, to the knowledge of the Company, threatened
by the Commission. 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 the Registration Statement
relating to the Securities and the plan of distribution thereof; 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 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
Time of Delivery (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 Time of Delivery, (i) the
Registration Statement, as amended as of any such time, the Final Prospectus, as
amended or supplemented as of any such time, and the Indenture complied and 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, contained or 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) the parts of the Registration Statement
which constitute the Statement of Eligibility and Qualification (Form T-1) under
the Trust Indenture Act of the Trustees (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.
(c) Each document incorporated by reference in the Registration Statement
and the Final Prospectus, at the time they were, or hereafter are, filed with
the Commission, complied or will comply and, at any time when a prospectus
relating to the Securities is required to be delivered under the Act in
connection with sales by any Underwriter or dealer, will comply in all material
respects with the Exchange Act and the rules and regulations promulgated
thereunder.
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(d) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Final Prospectus and is duly qualified
to transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(e) Each subsidiary of the Company listed in Schedule III hereto (each, a
"Principal Subsidiary") has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Final Prospectus and is duly qualified
to transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole. The Principal Subsidiaries are currently the
only operating insurance companies that are "significant subsidiaries" of the
Company as that term is defined in Rule 1-02(w) of Regulation S-X of the rules
and regulations of the Commission under the Act.
(f) All of the issued shares of capital stock of each Principal Subsidiary
have been duly and validly authorized and issued, are fully paid and
nonassessable, and are owned of record directly or indirectly by the Company or
another Principal Subsidiary, as the case may be, free and clear of any security
interest, claim, lien or encumbrance.
(g) Each Principal Subsidiary is duly licensed or authorized as an insurer
or reinsurer in each jurisdiction where it is required to be so licensed, except
where the failure to be so licensed or authorized in any such jurisdiction does
not have a material adverse effect on the financial condition, business or
properties of the Company and its subsidiaries taken as a whole; the Company and
each Principal Subsidiary have made all required filings under applicable
insurance holding company statutes, and each is duly licensed or authorized as
an insurance holding company in each jurisdiction where it is required to be so
licensed, except where the failure to have made such filings or to be so
licensed or authorized in any such jurisdiction does not have a material adverse
effect on the financial condition, business or properties of the Company and its
subsidiaries taken as a whole; the Company and each Principal Subsidiary have
all necessary authorizations, approvals, orders, consents, registrations or
qualifications of and from all insurance regulatory authorities to conduct their
respective businesses as described in the Final Prospectus as amended or
supplemented, except where the failure to have such authorizations, approvals,
orders, consents, registrations or qualifications does not have a material
adverse effect on the financial condition, business or properties of the Company
and its subsidiaries taken as a whole; and none of the Company or any Principal
Subsidiary has received any notification from any insurance regulatory authority
to the effect that any additional authorization, approval, order, consent,
registration or qualification from such insurance regulatory authority is needed
to be obtained by any of the Company or any Principal Subsidiary in any case
where it could be reasonably expected that (x) the Company or any Principal
Subsidiary would in fact be required either to obtain any such additional
authorization, approval, order, consent, registration or qualification or cease
or otherwise limit writing certain business
3
and (y) obtaining such authorization, approval, order, consent, license,
certificate, permit, registration or qualification or limiting such business
would have a material adverse effect on the business, financial position or
results of operations of the Company and its subsidiaries, taken as a whole.
(h) Each Principal Subsidiary is in compliance with the requirements of the
insurance laws and regulations of its state of incorporation and the insurance
laws and regulations of other jurisdictions which are applicable to such
Principal Subsidiary, and has filed all notices, reports, documents or other
information required to be filed thereunder, except where the failure to so
comply or file would not have a material adverse effect on the business,
financial position or results of operations of the Company and its subsidiaries,
taken as a whole.
(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 to which any property of the Company or any of its subsidiaries is
the subject which, if determined adversely to the Company or any of its
subsidiaries, individually or in the aggregate, could reasonably be expected to
have a material adverse effect on the financial condition, business or
properties of the Company and its subsidiaries taken as a whole; and, to the
best of the Company's knowledge, no such proceedings are threatened.
(j) This Agreement has been duly authorized, executed and delivered by the
Company.
(k) The Indenture has been duly qualified under the Trust Indenture Act and
has been duly authorized, executed and delivered by the Company and is a valid
and binding agreement of the Company, enforceable in accordance with its terms
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii) rights
of acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(l) The Securities have been duly authorized and, when the Securities are
issued and delivered pursuant to this Agreement, such Securities will have been
duly executed, authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits provided by
the Indenture.
(m) The issuance and sale of the Securities and compliance by the Company
with all of the provisions of the Securities, the Indenture and this Agreement
will not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument for borrowed money to
which the Company or any Principal Subsidiary is a party or by which the Company
or any of its Principal Subsidiaries is bound or to which any of the property or
assets of the Company or any of its Principal Subsidiaries is subject, nor will
such action result in any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or any of its Principal Subsidiaries or
any statute or any order, rule or regulation of any court or insurance
regulatory authority or other governmental agency or body having jurisdiction
over the Company or any of its Principal Subsidiaries or any of their
properties, in each case other than such breaches, conflicts, violations or
defaults which, individually or in the aggregate, would not have a material
adverse effect on the Company and its subsidiaries taken as a whole, and no
4
authorization, approval, order, consent, registration or qualification of or
with any such court or insurance regulatory authority or other governmental
agency or body is required for the issue or sale of the Securities, except such
authorizations, approvals, orders, consents, registrations or qualifications as
may be required under state or foreign securities or Blue Sky laws in connection
with the purchase and distribution of the Securities by the Underwriters, in
each case other than such authorizations, approvals, orders, consents,
registrations or qualifications which (individually or in the aggregate) the
failure to make, obtain or comply with would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole.
(n) Except as described in or contemplated by the Registration Statement
and the Final Prospectus, there has not been any material adverse change in, or
any adverse development which materially affects, the business, properties,
financial condition or results of operations of the Company and its subsidiaries
taken as a whole from the dates as of which information is given in the
Registration Statement and the Final Prospectus; and, since the respective dates
as of which information is given in the Registration Statement and the Final
Prospectus, there has not been any material increase in the consolidated capital
stock (other than issuances of capital stock upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares and upon conversions
of convertible securities, in each case which were outstanding on the date of
the latest balance sheet incorporated by reference in the Final Prospectus) or
any material increase in the consolidated long-term debt of the Company and its
subsidiaries or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, taken as a whole, otherwise than as set forth
or contemplated in the Final Prospectus.
(o) There are no material contracts, agreements or understandings between
the Company and any person granting such person the right to require the Company
to file a registration statement under the Act with respect to any notes or debt
of the Company owned or to be owned by such person or to require the Company to
include such securities for registration pursuant to the Registration Statement
or pursuant to any other registration statement filed by the Company under the
Act.
(p) The Company is not, and after giving effect to the offering and sale of the
Securities and the application of the net proceeds therefrom as described in the
Final Prospectus, will not be an "investment company" or an entity "controlled"
by an "investment company," as such terms are defined in the Investment Company
Act of 1940, as amended.
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by the Company,
as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. The Company hereby agrees to sell to the several
Underwriters, and each Underwriter, upon the basis of the representations and
warranties herein contained, but subject to the conditions hereinafter stated,
agree, severally and not jointly, to purchase from the Company the respective
principal amounts of the Securities set forth in Schedule II hereto
5
opposite their names at 98.651% of the principal amount -- the purchase price --
plus accrued interest, if any, from June 2, 2003 to the date of payment and
delivery.
3. Payment and Delivery of the Securities. Delivery of and payment for the
Securities shall be made at 10:00 AM, New York City time, on June 2, 2003, or at
such time on such later date not more than three Business Days after the
foregoing date as the Representatives shall designate, which date and time may
be postponed by agreement between the Representatives and the Company or as
provided in Section 10 hereof (such date and time of delivery and payment for
the Securities being herein called the "Time of Delivery"). Delivery of the
Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same day funds to an account specified by
the Company. Delivery of the Securities shall be made through the facilities of
the Depositary Trust Company unless the Representatives otherwise instruct.
4. Offering by Underwriters. It is understood that the several Underwriters
propose to offer the Securities for sale to the public as set forth in the Final
Prospectus.
5. Company Covenants. The Company agrees with each of the Underwriters of
the Securities:
(a) (i) To prepare the Final Prospectus as amended and supplemented in
relation to the Securities in a form approved by the Representatives and to
timely file such Final Prospectus pursuant to Rule 424(b) under the Act; (ii) to
make no further amendment or any supplement to the Registration Statement or
Final Prospectus as amended or supplemented after the date hereof and prior to
the Time of Delivery for the Securities unless the Representatives shall have
had a reasonable opportunity to review and comment upon any such amendment or
supplement prior to any filing thereof; (iii) to advise the Representatives
promptly of any such amendment or supplement after such Time of Delivery and
furnish the Representatives with copies thereof; (iv) to file promptly all
reports and any definitive proxy or information statements required to be filed
by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Securities, and during such same
period to advise the Representatives, promptly after it receives notice thereof,
of (I) the time when any amendment to the Registration Statement has been filed
or becomes effective or any supplement to the Final Prospectus or any amended
Final Prospectus has been filed with the Commission, (II) the issuance by the
Commission of any stop order or of any order preventing or suspending the use of
the Final Prospectus, (III) the suspension of the qualification of the
Securities for offering or sale in any jurisdiction or of the initiation or
threatening of any proceeding for any such purpose, or (IV) any request by the
Commission for the amending or supplementing of the Registration Statement or
the Final Prospectus or for additional information; and, in the event of the
issuance of any such stop order or of any such order preventing or suspending
the use of the Final Prospectus or suspending any such qualification, to use
promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the Representatives
may reasonably request to qualify the Securities for offering and sale under the
securities and insurance securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as
6
to permit the continuance of sales and dealings therein in such jurisdictions
for as long as may be necessary to complete the distribution of the Securities,
provided that in connection therewith, the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Final Prospectus as
amended or supplemented in such quantities as the Representatives may from time
to time reasonably request, and, if the delivery of a prospectus is required at
any time in connection with the offering or sale of the Securities, and if at
such time any event shall have occurred as a result of which the Final
Prospectus as then amended or supplemented would include an untrue statement of
a material fact or omit to state any material fact necessary in order to make
the statements therein, in light of the circumstances under which they were made
when such Final Prospectus is delivered, not misleading, or, if for any other
reason it shall be necessary during such 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, the Exchange
Act or the Trust Indenture Act, to notify the Representatives and upon their
request to prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives may from time to time
reasonably request of an amended Final Prospectus or a supplement to the Final
Prospectus which will correct such statement or omission or effect such
compliance;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement, an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a) of the Act
and the rules and regulations thereunder; and
(e) During the period beginning from the date hereof and continuing to and
including the latter of (i) the termination of trading restrictions for the
Securities, as notified to the Company by the Representatives or their counsel
and (ii) the Time of Delivery for the Securities, not to offer, sell, contract
to sell or otherwise dispose of any securities of the Company which are
substantially similar to the Securities, without the prior written consent of
the Representatives, which consent shall not be unreasonably withheld.
(f) The Company will not take, directly or indirectly, any action designed
to or that would constitute or that might reasonably be expected to cause or
result in, under the Exchange Act or otherwise, stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of the
Securities.
6. Fees and Expenses. 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 and all other
expenses incurred in connection with the preparation, printing and filing of the
Registration Statement, Basic Prospectus, any 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 this Agreement, any Blue Sky Survey and any Legal
Investment Memoranda in connection with the offering, purchase, sale and
delivery of the Securities; (iii) all reasonable
7
expenses in connection with the qualification of the Securities for offering and
sale under state securities and insurance securities laws as provided in Section
5(b) hereof, including the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky and Legal Investment surveys; (iv) the filing fees incident to securing
any required review by the National Association of Securities Dealers, Inc. of
the terms of the sale of the Securities; (v) any fees charged by securities
rating services for rating the Securities; (vi) the cost of preparing the
Securities; (vii) the fees and expenses of any Trustee, Paying Agent or Transfer
Agent and the fees and disbursements of counsel for any such Trustee, Paying
Agent or Transfer Agent in connection with the Indenture and the Securities; and
(viii) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided in this
Section. It is understood, however, that, except as provided in this Section,
Section 8 and Section 9 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.
7. Conditions to Underwriters' Obligations. The obligations of the
Underwriters to purchase the Securities shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein as of
the execution of this Agreement and as of the Time of Delivery, 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) The Final Prospectus as amended or supplemented in relation to the
Securities shall have been filed with the Commission pursuant to Rule 424(b)
within the applicable time period prescribed for such filing by the rules and
regulations under the Act and in accordance with Section 5(a) hereof; no stop
order suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to the
Representatives' reasonable satisfaction;
(b) LeBoeuf, Lamb, Greene & MacRae, L.L.P., counsel for the Company, shall
have furnished to you their written opinion, dated the Time of Delivery for the
Securities, in form and substance reasonably satisfactory to you, to the effect
that:
(i) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own or lease, as the case may be, and
to operate its properties and conduct its business as described in the
Final Prospectus as amended and supplemented;
(ii) This Agreement has been duly authorized, executed and delivered
by the Company;
(iii) The Securities have been duly authorized, and (assuming their
due authentication by the Trustee) have been duly executed, issued and
delivered and constitute valid and legally binding obligations of the
Company entitled to the benefits
8
provided by the Indenture, and the Securities and the Indenture conform in
all material respects to the descriptions thereof in the Final Prospectus
as amended or supplemented;
(iv) The Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Company,
and constitutes a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating
to or affecting creditors' rights and to general equity principles;
(v) The Registration Statement and the Final Prospectus as amended or
supplemented and any further amendments thereto made by the Company prior
to such Time of Delivery for the Securities (in each case other than with
respect to the financial statements, financial and accounting data and
related schedules incorporated by reference or included therein or excluded
therefrom, or the exhibits to the Registration Statement, including the
Form T-1, as to which such counsel need express no opinion or belief),
appear on their face to be appropriately responsive in all material
respects to the requirements of the Act and the Trust Indenture Act and the
applicable rules and regulations of the Commission thereunder; provided
that, such counsel shall not be deemed to be passing upon and shall not be
required to assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement and
Final Prospectus;
(vi) As such counsel, such counsel reviewed the Registration Statement
and Final Prospectus as amended or supplemented, participated in
discussions with representatives of the Underwriters and of the Company and
its accountants at which contents of the Registration Statement and Final
Prospectus as amended or supplemented and related matters were discussed;
on the basis of the information that such counsel gained in the course of
the performance of their services referred to above, although such counsel
shall not be deemed to be passing upon and shall not assume any
responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Final Prospectus
and shall not be required to have made an independent check or verification
thereof (except as described in paragraph (iii) hereof), on the basis of
the foregoing, no facts have come to the attention of such counsel in the
course of such review which have led such counsel to believe that, as of
its effective date, the Registration Statement or any further amendment
thereto made by the Company prior to the Time of Delivery (other than the
financial statements and the financial and accounting data and related
schedules incorporated by reference or included therein or excluded
therefrom, or the exhibits to the Registration Statement, including the
Form T-1, as to which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading or that, as of its date or the Time of Delivery, the Final
Prospectus as amended or supplemented or any further amendment or
supplement thereto made by the Company prior to the Time of Delivery (other
than the financial statements and financial and accounting data and related
schedules incorporated by reference or included therein or excluded
therefrom, or the exhibits to the Registration Statement, including the
Form T-1, as to which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a material fact
9
necessary to make the statements therein, in light of the circumstances
under which they were made not misleading; and
(vii) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended.
(c) Michael J. McCabe, Vice President and General Counsel of the Company,
shall have furnished to you his written opinion, dated the Time of Delivery for
the Securities, in form and substance reasonably satisfactory to you, to the
effect that:
(i) Each of Allstate Insurance Company ("AIC") and Allstate Life
Insurance Company ("ALIC") has been duly incorporated and is validly
existing as an insurance corporation under the laws of the State of
Illinois, with corporate power and authority to own its properties and
conduct its business as described in the Final Prospectus as amended or
supplemented (such counsel being entitled to rely, with respect to the
opinion in this clause (i), upon the opinions of members of the Company's
in-house legal staff,);
(ii) All of the issued shares of capital stock of each Principal
Subsidiary have been duly and validly authorized and issued, are fully paid
and nonassessable, and are owned of record directly or indirectly by the
Company, AIC or ALIC, as the case may be, free and clear of any perfected
security interest and, to the knowledge of such counsel, after due inquiry,
any other security interest, claim, lien or encumbrance (such counsel being
entitled to rely, with respect to the opinion in this clause (ii), upon
opinions of local or in-house counsel and, in respect of matters of fact,
upon certificates of officers of the Company or its subsidiaries, provided
that such counsel shall state that he believes that both you and he are
justified in relying upon such opinions or certificates);
(iii) Each Principal Subsidiary is duly licensed or authorized as an
insurer or reinsurer in each other jurisdiction where it is required to be
so licensed, except where the failure to be so licensed or authorized in
any such jurisdiction does not have a material adverse effect on the
financial condition, business or properties of the Company and its
subsidiaries taken as a whole; the Company and each Principal Subsidiary
have made all required filings under applicable insurance holding company
statutes, and each is duly licensed or authorized as an insurance holding
company in each jurisdiction where it is required to be so licensed, except
where the failure to have made such filings or to be so licensed or
authorized in any such jurisdiction does not have a material adverse effect
on the financial condition, business or properties of the Company and its
subsidiaries taken as a whole; the Company and each Principal Subsidiary
have all necessary authorizations, approvals, orders, consents,
registrations or qualifications of and from all insurance regulatory
authorities to conduct their respective businesses as described in the
Final Prospectus as amended or supplemented, except where the failure to
have such authorizations, approvals, orders, consents, registrations or
qualifications does not have a material adverse effect on the financial
condition, business or properties of the Company and its subsidiaries taken
as a whole; and none of the Company or any Principal Subsidiary has
received any notification from any insurance regulatory authority to the
effect that any additional authorization, approval, order, consent,
registration or qualification from such insurance regulatory authority is
needed to be obtained by any of the Company or any Principal Subsidiary in
any case where it could be reasonably expected that (x) the Company or any
Principal Subsidiary would in fact be required either to obtain any such
additional authorization, approval, order, consent, registration or
10
qualification or cease or otherwise limit writing certain business and (y)
obtaining such authorization, approval, order, consent, license,
certificate, permit, registration or qualification or limiting such
business would have a material adverse effect on the business, financial
position or results of operations of the Company and its subsidiaries,
taken as a whole (such counsel being entitled to rely, with respect to the
opinion in this clause (iii), upon opinions of local or in-house counsel
and, in respect of matters of fact, upon certificates of officers of the
Company or its subsidiaries, provided that such counsel shall state that he
believes that both you and he are justified in relying upon such opinions
and certificates);
(iv) To the best of such counsel's knowledge, after due inquiry, each
Principal Subsidiary is in compliance with the requirements of the
insurance laws and regulations of its state of incorporation and the
insurance laws and regulations of other jurisdictions which are applicable
to such Principal Subsidiary, and has filed all notices, reports, documents
or other information required to be filed thereunder, or is subject to no
material liability or disability by reason of the failure to so comply or
file (such counsel being entitled to rely, with respect to this clause
(iv), upon opinions of local or in-house counsel and, in respect of matters
of fact, upon certificates of officers of the Company or its subsidiaries,
provided that such counsel shall state that he believes that both you and
he are justified in relying upon such opinions and certificates);
(v) To the best of such counsel's knowledge, after due inquiry, and
other than as set forth in the Final Prospectus as amended or supplemented,
there are no legal or governmental proceedings pending to which the Company
or any of its subsidiaries is a party or to which any property of the
Company or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, individually or in the
aggregate, could reasonably be expected to have a material adverse effect
on the financial condition, business or properties of the Company and its
subsidiaries taken as a whole; and, to the best of such counsel's
knowledge, no such proceedings are threatened;
(vi) The issuance and sale of the Securities and the performance by
the Company of its obligations under the Indenture, the Securities and this
Agreement and the consummation by the Company of the transactions
contemplated therein and herein will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument relating to the Company or any of its subsidiaries,
as such agreements or instruments have been amended (which indentures,
mortgages, deeds of trust, loan agreements or other agreements or
instruments may be specified by such counsel on a schedule attached to his
opinion); nor will any such action result in any violation of the
provisions of the Certificate of Incorporation or the Bylaws of the Company
or any of its Principal Subsidiaries or any applicable United States law or
statute or any order, rule or regulation of any United States court or
governmental agency or body having jurisdiction over the Company, its
subsidiaries or any of their respective
11
properties, provided, that the foregoing opinion is limited to those
statutes, laws, rules and regulations of the United States of America, the
General Corporation Law of the State of Delaware and the State of Illinois,
in each case, which, in the opinion of such counsel, are normally
applicable to transactions of the type contemplated by this Agreement, and
provided further, that no opinion need be given with respect to (A) the
Act, the Exchange Act, the Trust Indenture Act, the rules and regulations
issued pursuant to each such act, any order, rule or regulation made or
established by any insurance official or regulatory authority or the
National Association of Securities Dealers, Inc., or state securities or
Blue Sky laws in connection with the purchase and distribution of the
Securities by the Underwriters or (B) conflicts, breaches or violations
which individually and in the aggregate both would not have a material
adverse effect on the financial condition, business or operations of the
Company and its subsidiaries taken as a whole and would not have a material
adverse effect on the sale or ownership of the Securities (such counsel
being entitled to rely, with respect to the opinion in this clause (vi),
upon opinions of local or in-house counsel and, in respect of matters of
fact, upon certificates of officers of the Company or its subsidiaries,
provided that such counsel shall state that he believes that both you and
he are justified in relying upon such opinions and certificates);
(vii) No consent, approval, authorization, order, registration or
qualification of or with any United States court or governmental agency or
body is required for the issue and sale of the Securities by the Company or
the consummation by the Company of the transactions contemplated by this
Agreement, except that such counsel need not express any opinion with
respect to such consents, approvals, authorizations, orders, registrations
or qualifications (A) as may be required under the Act, the Exchange Act,
the Trust Indenture Act, the rules and regulations issued pursuant to each
such act, any order, rule or regulation made or established by any
insurance official or regulatory authority or the National Association of
Securities Dealers, Inc., (B) as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the
Securities by the Underwriters, (C) the absence of which individually or in
the aggregate both are not material to the Company and its subsidiaries
taken as a whole and would not have a material adverse effect on the sale
or ownership of the Securities or (D) as may be required under foreign laws
in connection with the purchase and distribution of the Securities by any
international managers; provided, that the foregoing opinion is limited to
those consents, approvals, authorizations, orders, registrations and
qualifications under laws which, in the experience of such counsel, are
normally applicable to transactions of the type contemplated by this
Agreement;
(viii) To the best of such counsel's knowledge, after due inquiry, the
Company and its subsidiaries, as applicable, have filed all notices,
reports, documents or other information required to be filed pursuant to,
and have obtained all authorizations, approvals, orders, consents,
registrations or qualifications required to be obtained under, and have
otherwise complied with all requirements of, all applicable insurance laws
and regulations known to such counsel to be normally applicable to the
transactions contemplated by this Agreement in connection with the issuance
and sale by the Company of the Securities and, except as have been obtained
pursuant to the foregoing clause, no filing, authorization, approval,
order, consent, registration or qualification of or
12
with any insurance regulatory agency having jurisdiction over the Company
or any of its subsidiaries or any of their properties known to such counsel
to be normally applicable to the transactions contemplated by this
Agreement or the Indenture is required for the issue and sale of the
Securities or the consummation by the Company of the transactions
contemplated by this Agreement, except such filings, authorizations,
approvals, orders, consents, registrations or qualifications which
(individually or in the aggregate) the failure to make, obtain or comply
with would not have a material adverse effect on the financial condition,
business or properties of the Company and its subsidiaries taken as a whole
or a material adverse effect on the sale or ownership of the Securities;
(ix) To the best of such counsel's knowledge, after due inquiry, there
are no material contracts, agreements or understandings between the Company
and any person granting such person the right to require the Company to
file a registration statement under the Act with respect to any notes or
debt of the Company owned or to be owned by such person or to require the
Company to include such securities for registration pursuant to the
Registration Statement or pursuant to any other registration statement
filed by the Company under the Act.
(x) As general counsel to the Company, such counsel reviewed the
Registration Statement and Final Prospectus as amended or supplemented,
participated in various discussions with representatives of the
Underwriters and of the Company and its accountants at which contents of
the Registration Statement and Final Prospectus as amended or supplemented
were discussed; on the basis of the information that such counsel gained in
the course of his activities referred to above and as general counsel, such
counsel confirms that the Registration Statement, as of its effective date,
and the Final Prospectus, as amended or supplemented (in each case other
than with respect to the financial statements, financial and accounting
data and related schedules incorporated by reference or included therein or
excluded therefrom, as to which such counsel need express no opinion or
belief), appear on their face to be appropriately responsive in all
material respects to the requirements of the Act and the applicable rules
and regulations of the Commission thereunder; and, although such counsel is
not passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and Final Prospectus as amended or supplemented (except as
expressly set forth in such opinion), on the basis of the foregoing, no
facts have come to the attention of such counsel in the course of such
review which has caused such counsel to believe that, as of its effective
date, the Registration Statement or any further amendment thereto made by
the Company prior to such Time of Delivery (other than the financial
statements and financial and accounting data and related schedules
incorporated by reference or included therein or excluded therefrom or the
exhibits to the Registration Statement, including the Form T-1, and other
than information under the captions "Description of Debt Securities,"
"Description of Debt Warrants," "Description of Preferred Stock,"
"Description of Preferred Securities," "Description of Preferred Securities
Guarantees" and "Plan of Distribution" in the Basic Prospectus and under
the captions "Description of the Notes" and "Underwriting" contained in the
Final Prospectus as amended or supplemented, as to which such counsel need
express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
to make the statements
13
therein not misleading or that, as of its date, the Final Prospectus as
amended or supplemented or any further amendment or supplement thereto made
by the Company prior to such Time of Delivery (other than the financial
statements and financial and accounting data and related schedules
incorporated by reference or included therein or excluded therefrom or the
exhibits to the Registration Statement, including the Form T-1, and other
than information under the captions "Description of Debt Securities,"
"Description of Debt Warrants," "Description of Preferred Stock,"
"Description of Preferred Securities," "Description of Preferred Securities
Guarantees" and "Plan of Distribution" in the Basic Prospectus and under
the captions "Description of the Notes" and "Underwriting" contained in the
Final Prospectus as amended or supplemented, as to which such counsel need
express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that, as of the Time of
Delivery, either the Registration Statement or the Final Prospectus as
amended or supplemented or any further amendment or supplement (when
considered together with the document to which such supplement relates)
thereto made by the Company prior to such Time of Delivery (other than the
financial statements and financial and accounting data and related
schedules incorporated by reference or included therein or excluded
therefrom or the exhibits to the Registration Statement, including the Form
T-1, and other than information under the captions "Description of Debt
Securities," "Description of Debt Warrants," "Description of Preferred
Stock," "Description of Preferred Securities," "Description of Preferred
Securities Guarantees" and "Plan of Distribution" in the Basic Prospectus
and under the captions "Description of the Notes" and "Underwriting"
contained in the Final Prospectus as amended or supplemented, as to which
such counsel need express no opinion) contains an untrue statement of a
material fact or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and he does not know of any amendment to the
Registration Statement required to be filed or of any contracts or other
documents of a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by reference into the
Final Prospectus as amended or supplemented or required to be described in
the Registration Statement or the Final Prospectus as amended or
supplemented which are not filed or described as required, in each case,
other than with respect to the information under the captions "Description
of Debt Securities," "Description of Debt Warrants," "Description of
Preferred Stock," "Description of Preferred Securities," "Description of
Preferred Securities Guarantees" and "Plan of Distribution" in the Basic
Prospectus and under the captions "Description of the Notes" and
"Underwriting" contained in the Final Prospectus as amended or
supplemented; and
(xi) On the basis of the information that such counsel gained in the
course of the review referred to in paragraph (x) above and as general
counsel (but without passing upon or assuming any responsibility for the
accuracy, completeness or fairness of the statements contained in the
documents described below), such counsel confirms that no facts have come
to the attention of such counsel in the course of such review which have
caused such counsel to believe that the documents incorporated by reference
in the Final Prospectus as amended or supplemented (other than the
financial statements and financial and accounting data and related
schedules incorporated by reference or included therein or excluded
therefrom, as to which such counsel need express no opinion), when they
14
became effective or were filed with the Commission, as the case may be, did
not comply as to form in all material respects with the requirements of the
Act or the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder; and he has no reason to believe that any of such
documents, when they became effective or were so filed, as the case may be,
contained, in the case of a registration statement which became effective
under the Act, an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or, in the case of other documents that
were filed under the Act or the Exchange Act with the Commission, an untrue
statement of a material fact or omitted to state a material fact necessary
to make the statements therein, in light of the circumstances under which
they were made not misleading.
(d) The Representatives shall have received from Willkie Farr & Gallagher,
counsel for the Underwriters, such opinion or opinions, dated the Time of
Delivery and addressed to the Representatives, with respect to the issuance and
sale of the Securities, the Final Prospectus as amended and supplemented and
other related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they request for
this purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate
of the Company, signed by the Chairman of the Board, Chief Executive Officer,
President, Chief Operating Officer, Chief Financial Officer, Secretary, General
Counsel or Treasurer of the Company, dated the Time of Delivery, to the effect
that the signatory of such certificate has carefully examined the Registration
Statement, the Final Prospectus and amendments and supplements thereto and this
Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Time of Delivery with the
same effect as if made on the Time of Delivery and the Company has complied
with all agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Time of Delivery;
(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the Final Prospectus there has occurred no
event required to be set forth in an amendment or supplement to the
Registration Statement or Final Prospectus, and there has been no document
required to be filed under the Act and the rules and regulations thereunder
which, upon filing, would be deemed to be incorporated by reference in the
Final Prospectus which has not been so filed.
(f) On the date hereof, Deloitte & Touche shall have furnished to the
Representatives a letter, dated the date hereof, to the effect set forth in
Schedule IV hereto. As of the Time of Delivery, Deloitte & Touche shall have
furnished to the Representatives a letter, dated as of the Time of Delivery,
reaffirming, as of such date, all of the statements set forth in Schedule IV
hereto and otherwise in form and substance satisfactory to the Representatives.
15
(g) Subsequent to the effective date of this Agreement, there shall not
have been any decrease in the rating of any of the Company's debt securities by
any of Moody's Investor Services, Inc. or Standard & Poor's Corporation or any
public notice given of any intended or potential decrease in any such rating or
of a possible change in any such rating that does not indicate the direction of
the possible change.
(h) Prior to or at the Time of Delivery, the Company shall have furnished
or shall furnish to the Representatives such additional certificates of officers
of the Company as to such other matters as the Representatives may reasonably
request.
If any of the conditions specified in this Section 7 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be cancelled at,
or at any time prior to, the Time of Delivery by the Representatives. Notice of
such cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 7 shall be delivered
at the office of Willkie Farr & Gallagher, counsel to the Underwriters, at 787
Seventh Avenue, New York, New York 10019, at the Time of Delivery.
8. Reimbursement of Underwriters' Expenses. If the sale of the Securities
provided herein is not consummated because any condition to the obligations of
the Underwriters set forth in Section 7 (other than Section 7(d)) hereof is not
satisfied, because of any termination pursuant to Section 11(i) hereof or
because of any refusal, inability or failure by 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 through Banc One Capital Markets, Inc. on demand for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Securities.
9. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter, the
directors, officers, employees and agents of each Underwriter and each person
who controls any Underwriter, within the meaning of either the Act or the
Exchange Act, against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as: (i) 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 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 (ii) 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. The Company agrees to reimburse
16
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case arising in connection with this
Section 9 to the extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on behalf of any
Underwriter specifically for inclusion therein, and, provided, further, that the
Company shall not be liable to any Underwriter under the indemnity agreement in
this subsection (a) with respect to any Preliminary Final Prospectus, the Final
Prospectus or the Final Prospectus as amended or supplemented, as the case may
be, to the extent that any such loss, claim, damage or liability of such
Underwriter results from the fact such Underwriter sold the Securities to a
person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Final Prospectus or of the Final
Prospectus as then amended or supplemented, whichever is most recent, in any
case where such delivery is required by the Act if the Company had previously
furnished copies thereof to such Underwriter and the loss, claim, damage or
liability of such Underwriter results from an untrue statement or omission of a
material fact contained in the Preliminary Final Prospectus which was corrected
in the Final Prospectus (or the Final Prospectus as amended or supplemented).
This indemnity agreement will be in addition to any liability which the Company
may otherwise have.
(b) Each Underwriter, severally and not jointly, 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 furnished to the
Company by or on behalf of such Underwriter specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 9 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 9, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party: (i) will not relieve it
from liability under paragraph (a) or (b) above unless and to the extent it did
not otherwise learn of such action and such failure results in the forfeiture by
the indemnifying party of substantial rights and defenses; and (ii) will not, in
any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint
counsel of the indemnifying party's choice at the indemnifying party's expense
to represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be responsible
for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below) and to participate in and assume the
defense of the claim associated with such action; provided, however, that such
counsel shall be satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if: (i)
the use of counsel
17
chosen by the indemnifying party to represent the indemnified party would
present such counsel with a conflict of interest; (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified party
and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party; (iii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of the institution of such action; or (iv)
the indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise, or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action),
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 9 is unavailable to, or insufficient to hold harmless, an
indemnified party for any reason, the Company and the Underwriters severally
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company
and one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the one
hand, and by the Underwriters, on the other, from the offering of the
Securities; provided, however, that in no case shall any Underwriter (except as
may be provided in any agreement among underwriters relating to the offering of
the Securities) be responsible for any amount in excess of the total price at
which the applicable Securities underwritten by it and distributed to the public
were offered to the public. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the
Underwriters severally shall contribute 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 of the Underwriters, on the other, in connection
with the statements or omissions which resulted in such Losses as well as any
other relevant equitable considerations. Benefits received by the Company shall
be deemed to be equal to the total net proceeds from the offering (before
deducting expenses) received by it, and benefits received by the Underwriters
shall be deemed to be equal to the total underwriting discounts and commissions,
in each case as set forth on the cover page of the Final Prospectus. Relative
fault shall be determined by reference to, among other things: (i) whether any
untrue or any alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information provided by the
Company, on the one hand, or the Underwriters, on the other; (ii) the intent of
the parties and their relative knowledge; (iii) access to information; and (iv)
the opportunity to correct or prevent such untrue statement or omission. The
Company and the Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 9, each person who
controls an Underwriter within the meaning of either the Act or the Exchange Act
and each
18
director, officer, employee and agent of an Underwriter shall have the same
rights to contribution as such Underwriter, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, each officer
of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
10. Defaulting Underwriters. If any one or more Underwriters shall fail to
purchase and pay for any of the Securities agreed to be purchased by the
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its obligations under this Agreement,
the remaining Underwriters shall be obligated severally to take up and pay for
(in the respective proportions which the amount of Securities set forth opposite
their names on Schedule II hereto bears to the aggregate amount of Securities
set forth opposite the names of all the remaining Underwriters) the Securities
which the defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that in the event that the aggregate amount of Securities
which the defaulting Underwriter or Underwriters agreed but failed to purchase
shall exceed 10% of the aggregate amount of Securities set forth on Schedule II
hereto, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Securities, and if
such non-defaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without any liability to any non-defaulting Underwriter
or the Company. In the event of a default by any Underwriter as set forth in
this Section 10, the Time of Delivery shall be postponed for such period, not
exceeding five Business Days, as the Representatives shall determine in order
that the required changes to the Registration Statement and the Final Prospectus
or in any other documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its liability, if
any, to the Company and any non-defaulting Underwriter for damages occasioned by
its default hereunder.
11. Termination. This Agreement is subject to termination in the absolute
discretion of the Representatives, by notice given to the Company prior to
delivery of and payment for the Securities, if at any time prior to such time
(i) trading in the Company's securities shall have been suspended by the
Commission, (ii) 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, (iii) a banking moratorium shall have been
declared either by Federal or New York State authorities or (iv) there shall
have occurred any outbreak or escalation of hostilities, declaration by the
United States of a national emergency or war, or other calamity or crisis the
effect of which on financial markets is such as to make it, in the sole judgment
of the Representatives, impractical or inadvisable to proceed with the offering
or delivery of the Securities as contemplated by the Final Prospectus (exclusive
of any supplements thereto).
12. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of the several 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, employees, agents or controlling persons referred to in
Section 9 hereof, and will survive the delivery of and payment for the
Securities. The provisions of Section 8 and 9 hereof shall survive the
termination or cancellation of this Agreement.
19
13. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telefaxed to Goldman, Sachs & Co., 85 Broad Street, New York, NY 10004, Attn:
Registration Department (fax no. 212 902-3000); or if sent to the Company, will
be mailed, delivered or telefaxed to the address of the Company set forth in the
Registration Statement, Attention: Secretary.
14. Successors and Assigns. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers, directors, employees, agent and controlling persons referred to in
Section 9 hereof, and no other person will have any right or obligation
hereunder.
15. Time; `Business Day'. As used herein, the term `business day' shall
mean any day other than a Saturday, Sunday or a legal holiday or a day on which
banking institutions or trust companies are authorized or obligated by law to
close in New York City.
16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
17. Counterparts. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be deemed to
be an original, but all such counterparts shall together constitute one and the
same instrument.
20
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
THE ALLSTATE CORPORATION
By: /s/ James P. Zils
--------------------------------
Name: James P. Zils
Title: Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
GOLDMAN, SACHS & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
By: Goldman, Sachs & Co.
By: /s/ Adam Meschel
--------------------------
Name: Adam Meschel
Title: Vice President
For themselves and the other
Underwriters named in Schedule II
to the foregoing Agreement
21
SCHEDULE I
Representatives
Goldman, Sachs & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
SCHEDULE II
Principal Amount of
Underwriters Securities to be Purchased
- ------------ --------------------------
Goldman, Sachs & Co. ............................... $160,000,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated.. $ 84,000,000
J.P. Morgan Securities Inc.......................... $ 24,000,000
Morgan Stanley & Co. Incorporated................... $ 24,000,000
Citigroup Global Markets Inc........................ $ 24,000,000
ABN AMRO Incorporated............................... $ 12,000,000
Banc of America Securities LLC...................... $ 12,000,000
BNY Capital Markets, Inc............................ $ 12,000,000
Deutsche Bank Securities Inc........................ $ 12,000,000
Lehman Brothers Inc................................. $ 12,000,000
Wachovia Securities, Inc............................ $ 12,000,000
Wells Fargo Brokerage Services, LLC $ 12,000,000
Total............ $400,000,000
===========
SCHEDULE III
Principal Subsidiaries Jurisdiction Of Incorporation
Allstate Insurance Company Illinois
Allstate Life Insurance Company Illinois
SCHEDULE IV
Pursuant to Section 7(f) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
Exchange Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and financial
statement schedules, certain summary and selected consolidated financial
and operating data, and any supplementary financial information and
schedules (and, if applicable, pro forma financial information) audited by
them and included or incorporated by reference in the Final Prospectus as
amended or supplemented or the Registration Statement comply as to form in
all material respects with the applicable accounting requirements of the
Act and the Exchange Act and the related published rules and regulations
thereunder; and, they have performed a review in accordance with standards
established under Statement of Auditing Standards No. 71 established by the
American Institute of Certified Public Accountants of the unaudited
consolidated interim financial statements, and any supplementary financial
information and schedules, selected financial data, pro forma financial
information, prospective financial statements and/or condensed financial
statements derived from audited financial statements of the Company
included or incorporated by reference in the Final Prospectus, as amended
or supplemented or the Registration Statement, for the periods specified in
such letter, and, as indicated in their report thereon, copies of which
have been furnished to the representatives of the Underwriters (the
"Representatives");
(iii) On the basis of limited procedures, not constituting an audit in
accordance with generally accepted auditing standards, consisting of a
reading of the unaudited financial statements and other information
referred to below, a reading of the latest available interim and annual
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included or incorporated by reference
in the Final Prospectus as amended or supplemented, inquiries of officials
of the Company and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused them
to believe that:
(A) the unaudited consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows and certain
summary and selected consolidated financial and operating data
included or incorporated by reference in the Final Prospectus as
amended or supplemented do not comply as to form in all material
respects with the applicable accounting requirements of the Act and
the Exchange Act and the related published rules and regulations
thereunder and generally accepted accounting principles, applied on a
basis substantially consistent with that of the audited financial
statements included or incorporated by reference in the Final
Prospectus;
(B) any other unaudited income statement data and balance sheet
items included or incorporated by reference in the Final Prospectus as
amended or supplemented do not agree with the corresponding items in
the unaudited consolidated financial statements from which such data
and items were derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis for the
corresponding amounts in the audited consolidated financial statements
included or incorporated by reference in the Final Prospectus as
amended or supplemented;
(C) the unaudited financial statements which were not included or
incorporated by reference in the Final Prospectus as amended or
supplemented but from which were derived any unaudited condensed
financial statements referred to in Clause (A) and any unaudited
income statement data and balance sheet items included or incorporated
by reference in the Final Prospectus as amended or supplemented and
referred to in Clause (B) were not determined on a basis substantially
consistent with the basis for the audited consolidated financial
statements included or incorporated by reference in the Final
Prospectus as amended or supplemented;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Final
Prospectus as amended or supplemented do not comply as to form in all
material respects with the applicable accounting requirements of the
Act and the Exchange Act and the published rules and regulations
thereunder or the pro forma adjustments have not been properly applied
to the historical amounts in the compilation of those statements.
(E) as of a specified date not more than five business days prior
to the date of such letter, there have been any changes in the
consolidated capital stock or any increase in the consolidated
borrowings or consolidated reserve for property-liability insurance
claims and claims expense or consolidated reserve for life insurance
policy benefits, or asset reserves of the Company and its
subsidiaries, or any decreases in consolidated fixed income securities
available for sale, consolidated equity securities, consolidated
investments or shareholder equity, or any decrease in AIC's or ALIC's
statutory capital and surplus, or other items specified by the
Representatives, in each case as compared with amounts shown in the
latest balance sheet included or incorporated by reference in the
Final Prospectus as amended or supplemented, except in each case for
changes, increases or decreases which the Final Prospectus discloses
have occurred or may occur or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Final
Prospectus as amended or supplemented to the specified date referred
to in Clause (E) there were any decreases in consolidated premiums
earned, consolidated net investment income, or other items specified
by the Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable period
of the
2
preceding year and with any other period of corresponding length
specified by the Representatives, except in each case for decreases or
increases which the Final Prospectus discloses have occurred or may
occur or which are described in such letter; and
(iv) In addition to the examination referred to in their report(s) included
or incorporated by reference in the Final Prospectus as amended or supplemented
and the limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (ii) and (iii) above, they have carried out
certain procedures as specified in their letter, not constituting an audit in
accordance with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the Representatives,
which are derived from the general accounting records of the Company and its
subsidiaries, which appear or are incorporated by reference in the Final
Prospectus as amended or supplemented or in Part II of, or in exhibits and
schedules to, the Registration Statement specified by the Representatives, and
have compared certain of such specified amounts, percentages and financial
information with the accounting records of the Company and its subsidiaries and
have found them to be in agreement.
3
Exhibit 4.1
================================================================================
THE ALLSTATE CORPORATION
TO
U.S BANK NATIONAL ASSOCIATION, as Trustee
---------------------------------------------------------
TENTH SUPPLEMENTAL INDENTURE TO
INDENTURE DATED DECEMBER 16, 1997
(SENIOR DEBT SECURITIES)
Dated as of June 2, 2003
---------------------------------------------------------
5.350% Senior Notes due 2033
================================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I
Relation to Indenture; Definitions
Section 1.1. RELATION TO INDENTURE.....................................1
Section 1.2. DEFINITIONS...............................................2
ARTICLE II
The Series of Securities
Section 2.1. TITLE OF THE SECURITIES...................................2
Section 2.2. LIMITATION ON AGGREGATE PRINCIPAL AMOUNT..................2
Section 2.3. PRINCIPAL PAYMENT DATE....................................2
Section 2.4. INTEREST AND INTEREST RATES...............................2
Section 2.5. PLACE OF PAYMENT..........................................3
Section 2.6. REDEMPTION................................................3
Section 2.7. DENOMINATION..............................................5
Section 2.8. CURRENCY..................................................5
Section 2.9. FORM OF SECURITIES........................................5
Section 2.10. SECURITIES REGISTRAR AND PAYING AGENT.....................5
Section 2.11. SINKING FUND OBLIGATIONS..................................5
Section 2.12. DEFEASANCE AND COVENANT DEFEASANCE........................5
Section 2.13. IMMEDIATELY AVAILABLE FUNDS...............................5
ARTICLE III
Expenses
Section 3.1. PAYMENT OF EXPENSES.......................................5
Section 3.2. PAYMENT UPON RESIGNATION OR REMOVAL.......................5
ARTICLE IV
Miscellaneous Provisions
Section 4.1. TRUSTEE NOT RESPONSIBLE FOR RECITALS......................6
Section 4.2. ADOPTION, RATIFICATION AND CONFIRMATION...................6
Section 4.3. COUNTERPARTS..............................................6
Section 4.4. GOVERNING LAW.............................................6
THE ALLSTATE CORPORATION
TENTH SUPPLEMENTAL INDENTURE TO
INDENTURE DATED DECEMBER 16, 1997
(SENIOR DEBT SECURITIES)
$400,000,000
5.350% Senior Notes due 2033
TENTH SUPPLEMENTAL INDENTURE, dated as of June 2, 2003, between THE
ALLSTATE CORPORATION, a Delaware corporation (the "Company"), and U.S. BANK
NATIONAL ASSOCIATION, a national banking association, organized under the laws
of the United States, as successor in interest to STATE STREET BANK AND TRUST
COMPANY, a trust company organized under the laws of the Commonwealth of
Massachusetts, as Trustee (the "Trustee").
RECITALS
The Company has heretofore executed and delivered to the Trustee an
Indenture for Senior Debt Securities, dated as of December 16, 1997, as amended
by the Third Supplemental Indenture dated as of July 23, 1999 and the Sixth
Supplemental Indenture dated as of June 12, 2000 (the "Indenture"), providing
for the issuance from time to time of series of the Company's Securities.
Section 301 of the Indenture provides for various matters with respect
to any series of Securities issued under the Indenture to be established in an
indenture supplemental to the Indenture.
Section 901(7) of the Indenture provides for the Company and the
Trustee to enter into an indenture supplemental to the Indenture to establish
the form or terms of Securities of any series as provided by Sections 201 and
301 of the Indenture.
NOW, THEREFORE, THIS TENTH SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the issuance of the
series of Securities provided for herein, it is mutually agreed, for the equal
and proportionate benefit of all Holders of the Securities of such series, as
follows:
ARTICLE I
Relation to Indenture; Definitions
Section 1.1. RELATION TO INDENTURE. This Tenth Supplemental Indenture
constitutes an integral part of the Indenture.
1
Section 1.2. DEFINITIONS. For all purposes of this Tenth Supplemental
Indenture:
(a) Capitalized terms used herein without definition shall have the
meanings specified in the Indenture;
(b) All references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this Tenth
Supplemental Indenture; and
(c) The terms "herein," "hereof," "hereunder" and other words of
similar import refer to this Tenth Supplemental Indenture.
ARTICLE II
The Series of Securities
Section 2.1. TITLE OF THE SECURITIES. There shall be a series of
Securities designated the "5.350% Senior Notes due 2033" (the "Securities").
Section 2.2. LIMITATION ON AGGREGATE PRINCIPAL AMOUNT. The aggregate
principal amount of the Securities shall initially be limited to $400,000,000.
The Company may, without the consent of the holders of the Securities, issue
additional Securities having the same interest rate, maturity date and other
terms as described in the related prospectus supplement and prospectus. Any
additional Securities, together with the Securities offered by the related
prospectus supplement, will constitute a single series of Securities under the
Indenture. No additional Securities may be issued if an Event of Default under
the Indenture has occurred and is continuing with respect to the Securities.
Section 2.3. PRINCIPAL PAYMENT DATE. The principal amount of the
Securities outstanding (together with any accrued and unpaid interest) shall be
payable in a single installment on June 1, 2033, which date shall be the Stated
Maturity of the Securities Outstanding.
Section 2.4. INTEREST AND INTEREST RATES. The rate of interest on each
Security shall be 5.350% per annum, accruing from June 2, 2003, or from the most
recent interest payment date (each such date, an "Interest Payment Date") to
which interest has been paid or duly provided for, payable semiannually in
arrears on June 1 and December 1 of each year commencing December 1, 2003 until
the principal thereof shall have become due and payable, and until the principal
thereof is paid or duly provided for or made available for payment. The amount
of interest payable on any Interest Payment Date shall be computed on the basis
of a 360-day year of twelve 30-day months. The amount of interest payable for
any partial period shall be computed on the basis of the actual number of days
elapsed in a 360-day year of twelve 30-day months. In the event that any date on
which interest is payable on any Security is not a Business Day, then payment of
interest payable on such date will be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of any such
delay). A "Business Day" shall mean any day, other than a Saturday or Sunday, on
which banks in the City of New York and Boston, Massachusetts are not required
by law to
2
close. The interest installment so payable in respect of any Security,
and punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the person in whose name such Security (or
one or more Predecessor Securities) is registered at the close of business on
May 15 or November 15 prior to such Interest Payment Date. Any such interest
installment not punctually paid or duly provided for in respect of any Security
shall forthwith cease to be payable to the registered Holder on such Regular
Record Date and may either be paid to the Person in whose name such Security (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date to be fixed by the Trustee for the payment of such Defaulted
Interest, notice whereof shall be given to the Holders of this series of
Securities not less than 10 days prior to such Special Record Date, or be paid
at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture.
Section 2.5. PLACE OF PAYMENT. The Place of Payment where the
Securities may be presented or surrendered for payment, where the Securities may
be surrendered for registration of transfer or exchange and where notices and
demand to or upon the Company in respect of the Securities and the Indenture may
be served shall be the Corporate Trust Office of the Trustee.
Section 2.6. REDEMPTION.
(a) The Company may redeem the Securities, in whole or in part, at any
time at a redemption price equal to the greater of (i) 100% of the principal
amount of such securities to be redeemed or (ii) an amount, as determined by an
Independent Investment Banker, equal to the sum of the present values of the
remaining scheduled payments of principal of and interest on the securities to
be redeemed (not including any portion of such payments of interest accrued to
the date of redemption) discounted to the redemption date on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Adjusted
Treasury Rate, plus 20 basis points, plus, in either of the above cases, accrued
and unpaid interest thereon to the redemption date.
(b) For the purposes of this Section 2.6,
"Adjusted Treasury Rate" means, with respect to any redemption date:
- the yield, under the heading which represents the average for the
immediately preceding week, appearing in the most recently
published statistical release designated "H.15(519)" published by
the Board of Governors of the Federal Reserve System (or any
successor publication which is published weekly by the Board of
Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury securities
adjusted to constant maturity) under the caption "Treasury
Constant Maturities," for the maturity corresponding to the
Comparable Treasury Issue. If no maturity is within three months
before or after the Remaining Life, yields for the two published
maturities most
3
closely corresponding to the Comparable Treasury Issue shall be
determined and the Adjusted Treasury Rate shall be interpolated
or extrapolated from such yields on a straight line basis,
rounding to the nearest month; or
- if such release (or any successor release) is not published
during the week preceding the calculation date or does not
contain such yields, the rate per annum equal to the semiannual
equivalent yield to maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date.
The Adjusted Treasury Rate shall be calculated on the third business
day preceding the redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the securities to be redeemed that would be used, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such securities ("Remaining Life").
"Comparable Treasury Price" means (i) the average of five Reference
Treasury Dealer Quotations for such redemption date, after excluding the highest
and lowest Reference Treasury Dealer Quotations, or (ii) if the Independent
Investment Banker obtains fewer than five such Reference Treasury Dealer
Quotations, the average of all such quotations.
"Independent Investment Banker" means one of the Reference Treasury
Dealers appointed by us.
"Reference Treasury Dealer" means:
- each of Goldman, Sachs & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated and their respective successors; provided,
however, that if any of the foregoing shall cease to be a primary
U.S. Government securities dealer in the United States (a
"Primary Treasury Dealer"), the Company shall substitute therefor
another Primary Treasury Dealer; and
- any three other Primary Treasury Dealers selected by the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Independent Investment Banker, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Independent Investment Banker at 5:00
p.m., New York City Time, on the third business day preceding such redemption
date.
4
The Company will mail a notice of redemption at least 30 days but not
more than 60 days before the redemption date to each holder of the securities to
be redeemed. If less than all of the securities are to be redeemed, the trustee
will select, by such method as it will deem fair and appropriate, including pro
rata or by lot, the securities to be redeemed in whole or in part.
Unless the Company defaults in payment of the redemption price, on and
after the redemption date, interest will cease to accrue on the securities or
portions thereof called for redemption.
Section 2.7. DENOMINATION. The Securities of this series shall be
issuable only in registered form without coupons and in denominations of $1,000
and integral multiples thereof.
Section 2.8. CURRENCY. Principal and interest on the Securities shall
be payable in such coin or currency of the United States of America that at the
time of payment is legal tender for payment of public and private debts.
Section 2.9. FORM OF SECURITIES. The Securities shall be substantially
in the form attached as EXHIBIT A hereto.
Section 2.10. SECURITIES REGISTRAR AND PAYING AGENT. The Trustee shall
serve initially as Securities Registrar and Paying Agent.
Section 2.11. SINKING FUND OBLIGATIONS. The Company has no obligation
to redeem or purchase any Securities pursuant to any sinking fund or analogous
requirement or upon the happening of a specified event or at the option of a
Holder thereof.
Section 2.12. DEFEASANCE AND COVENANT DEFEASANCE. The Company has
elected to have both Section 1302 (relating to defeasance) and Section 1303
(relating to covenant defeasance) applied to the Securities.
Section 2.13. IMMEDIATELY AVAILABLE FUNDS. All payments of principal
and interest shall be made in immediately available funds.
ARTICLE III
Expenses
Section 3.1. PAYMENT OF EXPENSES. In connection with the offering,
sale and issuance of the Securities, the Company, in its capacity as borrower
with respect to the Securities, shall pay all costs and expenses relating to the
offering, sale and issuance of the Securities, including commissions to the
underwriters payable pursuant to the Underwriting Agreement, dated May 28, 2003,
2003, and compensation and expenses of the Trustee under the Indenture in
accordance with the provisions of Section 607 of the Indenture.
Section 3.2. PAYMENT UPON RESIGNATION OR REMOVAL. Upon termination of
this Tenth Supplemental Indenture or the Indenture or the removal or resignation
5
of the Trustee, unless otherwise stated, the Company shall pay to the Trustee
all amounts accrued to the date of such termination, removal or resignation.
ARTICLE IV
Miscellaneous Provisions
Section 4.1. TRUSTEE NOT RESPONSIBLE FOR RECITALS. The recitals herein
contained are made by the Company and not by the Trustee, and the Trustee
assumes no responsibility for the correctness thereof. The Trustee makes no
representation as to the validity or sufficiency of this Tenth Supplemental
Indenture.
Section 4.2. ADOPTION, RATIFICATION AND CONFIRMATION. The Indenture,
as supplemented and amended by this Tenth Supplemental Indenture, is in all
respects hereby adopted, ratified and confirmed.
Section 4.3. COUNTERPARTS. This Tenth Supplemental Indenture may be
executed in any number of counterparts, each of which shall be an original, but
such counterparts shall together constitute but one and the same instrument.
Section 4.4. GOVERNING LAW. THIS TENTH SUPPLEMENTAL INDENTURE AND EACH
SECURITY SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF
NEW YORK AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
6
IN WITNESS WHEREOF, the parties hereto have caused this Tenth
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, on the date or dates indicated in the
acknowledgments and as of the day and year first above written.
THE ALLSTATE CORPORATION
By:
---------------------------
Name: James P. Zils
Title: Treasurer
ATTEST:
By:
---------------------------
Name: Robert W. Pike
Title: Secretary
U.S. BANK NATIONAL
ASSOCIATION, as Trustee
By:
---------------------------
Name:
7 Title:
EXHIBIT A
(FORM OF FACE OF SECURITY)
This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of a Depositary. This Security is exchangeable for Securities registered
in the name of a person other than the Depositary or its nominee only in the
limited circumstances described in the Indenture, and no transfer of this
Security (other than a transfer of this Security as a whole by the Depositary to
a nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary) may be registered except in limited
circumstances.
Unless this Security is presented by an authorized representative of
The Depository Trust Company (55 Water Street, New York, New York) to the issuer
or its agent for registration of transfer, exchange or payment, and any Security
issued is registered in the name of Cede & Co. or such other name as requested
by an authorized representative of The Depository Trust Company and any payment
hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner hereof, Cede &
Co., has an interest herein.
Certificate No. 1 $400,000,000
CUSIP No. 020002 AQ 4
THE ALLSTATE CORPORATION
5.350% Senior Notes due 2033
THE ALLSTATE CORPORATION, a Delaware corporation (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 four hundred million dollars ($400,000,000) on
June 1, 2033. The Company further promises to pay interest on said principal sum
outstanding from June 2, 2033, or from the most recent interest payment date
(each such date, an "Interest Payment Date") to which interest has been paid or
duly provided for, semiannually in arrears on June 1 and December 1 of each year
commencing December 1, 2003 at the rate of 5.350% per annum, until the principal
hereof shall have become due and payable and, until the principal hereof is paid
or duly provided for or made available for payment. The amount of interest
payable on any Interest Payment Date shall be computed on the basis of a 360-day
year of twelve 30-day months. The amount of interest payable for any partial
period shall be computed on the basis of the number of actual days elapsed in a
360-day year of twelve 30-day months. In the event that any date on which
interest is payable on this Security is not a Business Day, then payment of
interest payable on such date will be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of any such
delay). A "Business Day" shall mean any day, other than a Saturday or Sunday, on
which the banks in the City of New York and Boston, Massachusetts are
A-1
not required by law to close. The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on
May 15 or November 15 prior to such Interest Payment Date. Any such interest
installment not punctually paid or duly provided for shall forthwith cease to be
payable to the registered Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date to
be fixed by the Trustee for the payment of such Defaulted Interest, notice
whereof shall be given to the Holder of this Security not less than 10 days
prior to such Special Record Date, or be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which this Security may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture.
The principal of (and premium, if any) and the interest on this
Security shall be payable at the office or agency of the Company maintained for
that purpose in the United States in such coin or currency of the United States
of America that at the time of payment is legal tender for payment of public and
private debts; PROVIDED, HOWEVER, that payment of interest may be made at the
option of the Company by check mailed to the registered Holder at such address
as shall appear in the Security Register. Notwithstanding the foregoing, so long
as the Holder of this Security is Cede & Co., the payment of the principal of
(and premium, if any) and interest on this Security will be made at such place
and to such account as may be designated by Cede & Co. All payments of principal
and interest hereunder shall be made in immediately available funds.
Reference is hereby made to the further provisions of this Security
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 referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid for any
purpose.
A-2
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
THE ALLSTATE CORPORATION
By:
---------------------------
Name:
Title:
Attest:
By:
---------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
Dated: June 2, 2003
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By:
---------------------------
Authorized Signatory
A-3
(FORM OF REVERSE OF SECURITY)
This Security is one of a duly authorized issue of securities of the
Company, designated as its 5.350% Senior Notes due 2033 (herein referred to as
the "Securities"), issued under and pursuant to an Indenture, dated as of
December 16, 1997 between the Company and State Street Bank and Trust Company,
as Trustee (herein called the "Trustee," which term includes any successor
trustee under the Indenture), as amended by the Third Supplemental Indenture
dated as of July 23, 1999 and the Sixth Supplemental Indenture dated as of June
12, 2000 and as supplemented by the Tenth Supplemental Indenture, dated as of
June 2, 2003, between the Company and the Trustee (the Indenture as so amended
and supplemented, the "Indenture"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the Holders of the Securities, and of the terms upon
which the Securities are, and are to be, authenticated and delivered.
All terms used in this Security that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Company may redeem the Securities, in whole or in part, at any
time at a redemption price equal to the greater of (i) 100% of the principal
amount of such securities to be redeemed or (ii) an amount, as determined by an
Independent Investment Banker, equal to the sum of the present values of the
remaining scheduled payments of principal of and interest on the securities to
be redeemed (not including any portion of such payments of interest accrued to
the date of redemption) discounted to the redemption date on a semiannual basis
assuming a 360-day year consisting of twelve 30-day months) at the Adjusted
Treasury Rate, plus 20 basis points, plus, in either of the above cases, accrued
and unpaid interest thereon to the redemption date.
"Adjusted Treasury Rate" means, with respect to any redemption date:
- the yield, under the heading which represents the average for the
immediately preceding week, appearing in the most recently
published statistical release designated "H.15(519)" published by
the Board of Governors of the Federal Reserve System (or any
successor publication which is published weekly by the Board of
Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury securities
adjusted to constant maturity) under the caption "Treasury
Constant Maturities," for the maturity corresponding to the
Comparable Treasury Issue. If no maturity is within three months
before or after the Remaining Life, yields for the two published
maturities most closely corresponding to the Comparable Treasury
Issue shall be determined and the Adjusted Treasury Rate shall be
interpolated or extrapolated from such yields on a straight line
basis, rounding to the nearest month; or
A-4
- if such release (or any successor release) is not published
during the week preceding the calculation date or does not
contain such yields, the rate per annum equal to the semiannual
equivalent yield to maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date.
The Adjusted Treasury Rate shall be calculated on the third business
day preceding the redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the securities to be redeemed that would be used, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such securities ("Remaining Life").
"Comparable Treasury Price" means (i) the average of five Reference
Treasury Dealer Quotations for such redemption date, after excluding the highest
and lowest Reference Treasury Dealer Quotations, or (ii) if the Independent
Investment Banker obtains fewer than five such Reference Treasury Dealer
Quotations, the average of all such quotations.
"Independent Investment Banker" means one of the Reference Treasury
Dealers appointed by us.
"Reference Treasury Dealer" means:
- each of Goldman, Sachs & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated and their respective successors; provided,
however, that if any of the foregoing shall cease to be a primary
U.S. Government securities dealer in the United States (a
"Primary Treasury Dealer"), the Company shall substitute therefor
another Primary Treasury Dealer; and
- any three other Primary Treasury Dealers selected by the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Independent Investment Banker, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Independent Investment Banker at 5:00
p.m., New York City Time, on the third business day preceding such redemption
date.
The Company will mail a notice of redemption at least 30 days but not
more than 60 days before the redemption date to each holder of the securities to
be redeemed. If less than all of the securities are to be redeemed, the trustee
will select, by such method as it will deem fair and appropriate, including pro
rata or by lot, the securities to be redeemed in whole or in part.
A-5
Unless we default in payment of the redemption price, on and after the
redemption date, interest will cease to accrue on the securities or portions
thereof called for redemption.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture contains provisions for satisfaction, discharge and
defeasance at any time of the entire indebtedness of this Security upon
compliance by the Company with certain conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities of
each series at the time Outstanding of each series to be affected. The Indenture
also contains provisions permitting Holders of specified percentages in
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange therefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security. No
reference herein to the Indenture and no provision of this Security or of the
Indenture (other than Section 1302 and Section 1303 of the Indenture) shall
alter or impair the obligation of the Company to pay the principal and interest
on the Security 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, the transfer of this Security is registrable in the
Securities Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company maintained under Section 1002 of
the Indenture duly endorsed by, or accompanied by a written instrument of
transfer, in form satisfactory to the Company and the Securities Registrar, duly
executed by the Holder hereof or his or her attorney duly authorized in writing,
and thereupon one or more new Securities of this series, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees. No service charge shall be made for any
such registration of 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.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
A-6
This Global Security is exchangeable for Securities in definitive form
only under certain limited circumstances set forth in the Indenture. Securities
of this series so issued are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations herein and therein set forth,
Securities of this series so issued are exchangeable for a like aggregate
principal amount of Securities of this series of a different authorized
denomination, as requested by the Holder surrendering the same.
The Company and, by its acceptance of this Security or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, this Security agree that for United States federal, state and local
tax purposes it is intended that this Security constitute indebtedness.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE
AND THE SECURITIES WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS THEREOF.
A-7
Exhibit 5.1
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
125 West 55th Street
New York, NY 10019
May 29, 2003
The Allstate Corporation
2775 Sanders Road
Northbrook, Illinois 60062
Re: The Allstate Corporation
5.350% Senior Notes due 2033
Ladies and Gentlemen:
We have acted as special counsel for The Allstate Corporation, a
Delaware corporation (the "Company"), in connection with the issuance and sale
by the Company of an aggregate of $400,000,000 principal amount of the Company's
5.350% Senior Notes due 2033 (the "Securities") pursuant to the Indenture, dated
as of December 16, 1997, as amended by the Third Supplemental Indenture, dated
as of July 23, 1999, and the Sixth Supplemental Indenture, dated as of June 12,
2000, and as supplemented by the Tenth Supplemental Indenture, to be dated as of
June 2, 2003 (the "Indenture"), between the Company and U.S. Bank National
Association, as trustee (successor in interest to State Street Bank and Trust
Company) (the "Trustee").
In connection therewith, we have examined (a) the Registration
Statement on Form S-3 (File No. 333-39640), as amended (the "Registration
Statement") filed by the Company and the other related registrants with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Act"), (b) the prospectus of the Company dated June
19, 2000, as supplemented by a prospectus supplement, dated May 28, 2003
relating to the Securities, as filed in final form with the Commission on May
29, 2003, pursuant to Rule 424(b) under the Act (the "Prospectus") and (c) the
Indenture. In addition, we have examined the originals (or copies certified or
otherwise identified to our satisfaction) of such other agreements, instruments,
certificates, documents and records and have reviewed such
The Allstate Corporation
May 29, 2003
Page 2
questions of law and made such inquiries as we have deemed necessary or
appropriate for the purposes of the opinions rendered herein.
In such examination, we have assumed, without inquiry, the legal
capacity of all natural persons, the genuineness of all signatures on all
documents examined by us, the authenticity of all documents submitted to us as
originals, the conformity to the original documents of all such documents
submitted to us as copies and the authenticity of the originals of such latter
documents. We have also assumed that the books and records of the Company are
maintained in accordance with proper corporate procedures. As to any facts
material to our opinion, we have, when relevant facts were not independently
established, relied upon the aforesaid agreements, instruments, certificates,
documents and records and upon statements and certificates of officers and
representatives of the Company and public officials.
Based upon the foregoing, and subject to the limitations,
qualifications and assumptions stated herein, we are of the opinion that:
The Securities have been duly authorized and (assuming their due
authentication by the Trustee) when they have been duly executed, issued and
delivered, will constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture.
The opinions rendered herein are limited to the laws of the State of
New York, the General Corporation Law of the State of Delaware and the Federal
law of the United States.
We consent to the filing of this opinion as an exhibit to the
Company's Current Report on Form 8-K dated May 29, 2003, which is incorporated
by reference into the Registration Statements and the Final Prospectus and to
the use of our name under the caption "Legal Opinions" contained in the Final
Prospectus. In giving our consent, we do not thereby concede that we come within
the category of persons whose consent is required by the Securities Act or the
General Rules and Regulations promulgated thereunder.
Very truly yours,
/s/ LeBoeuf, Lamb, Greene & MacRae L.L.P.
Exhibit 12
THE ALLSTATE CORPORATION
COMPUTATION OF EARNINGS TO FIXED CHARGES RATIO
(in millions) For the three months
ended
March 31, For the Year ended December 31,
----------------------------------------------------------------
2003 2002 2002 2001 2000
---------- ---------- --------- ----------- ----------
1. Income from continuing operations
before income taxes, equity in net income of
unconsolidated subsidiary, dividends on
redeemable preferred securities of
subsidiary trusts and cumulative
effect of change in accounting principle $871 $517 $1,540 $1,285 $3,047
2. Dividends from less than 50% owned subsidiary - - - - -
---------- ---------- --------- ----------- ----------
3. Income from continuing operations before
income taxes (1+2) $871 $517 $1,540 $1,285 $3,047
---------- ---------- --------- ----------- ----------
Fixed Charges:
4. Interest on indebtedness $67 $69 $278 $248 $229
5. Interest factor of annual rental expense 11 11 43 57 50
---------- ---------- --------- ----------- ----------
6. Total fixed charges (4+5) $78 $80 $321 $305 $279
---------- ---------- --------- ----------- ----------
7. Dividends on redeemable preferred securities 5 5 15 63 69 59 63
8. Total fixed charges and dividends on
redeemable preferred securities (6+7) $83 $85 $336 $374 $342
---------- ---------- --------- ----------- ----------
9. Income from continuing operations before
income taxes and fixed charges (3+6) $949 $597 $1,861 $1,590 $3,326
========== ========== ========= =========== ==========
10. Ratio of earnings to fixed charges before
interest credited to contractholder funds 11.4 X 7.0 X 5.5 X 4.3 X 9.7 X
(A)
========== ========== ========= =========== ==========
11. Interest credited to contractholder funds $453 $429 $1,764 $1,733 $1,503
12. Total fixed charges including dividends on
redeemable preferred securities and interest
credited to contractholder funds (8+11) $536 $514 $2,100 $2,107 $1,845
---------- ---------- --------- ----------- ----------
13. Income from continuing operations before
income taxes and fixed charges including
interest credited to contractholder
funds (3+6+11) $1,402 $1,026 $3,625 $3,323 $4,829
========== ========== ========= =========== ==========
14. Ratio of earnings to fixed charges (13/12) 2.6 X 2.0 X 1.7 X 1.6 X 2.6 X
========== ========== ========= =========== ==========
(A) The Company has authority to issue up to 25,000,000 shares of preferred
stock, par value $1.00 per share; however, there are currently no shares
outstanding and the Company does not have a preferred stock dividend
obligation. Therefore, the Ratio of Earnings to Fixed Charges and
Preferred Stock Dividends is equal to the Ratio of Earnings to Fixed
Charges and is not disclosed separately.