Exhibit
1.1
LINCOLN
NATIONAL CORPORATION
Underwriting
Agreement
$375,000,000 6.30%
Senior Notes due 2037
October
3, 2007
Goldman,
Sachs & Co.
Underwriter
85
Broad
Street
New
York,
NY 10004
Ladies
and Gentlemen:
Lincoln
National Corporation, an Indiana corporation (the “
Company
”), proposes to
issue and sell to Goldman, Sachs & Co. (the “
Underwriter
” with
respect to the securities specified herein), the principal amount of its
securities in Schedule I hereto (the “
Securities
”), to be issued
under the indenture specified in Schedule I hereto (the “
Indenture
”)
between the Company and the Trustee identified in such Schedule (the
“
Trustee
”).
The
Company has prepared and filed with the Securities and Exchange Commission
(the
“
Commission
”) under the Securities Act of 1933, as amended (the
“
Act
”), an “automatic shelf registration statement” as defined under Rule
405 under the Act on Form S-3 (file number 333-132416), relating to securities
(the “
Shelf Securities
”), including the Securities, to be issued from
time to time by the Company. Such registration statement, including
the exhibits thereto and the other information and documents deemed pursuant
to
Rule 430B under the Act to be part thereof as amended to (and including) the
date of this Agreement, but excluding any Statement of Eligibility
(Form T-1) under the Trust Indenture Act of 1939, as amended (the “
Trust
Indenture Act
”), is hereinafter referred to as the “
Registration
Statement
”. The term “
Basic Prospectus
” means the
prospectus, dated March 14, 2006, included in the Registration
Statement. The Company proposes to file with the Commission pursuant
to Rule 424 under the Act a supplement or supplements to the Basic
Prospectus relating to the Securities and the plan of distribution thereof
and
has previously advised you of all further information (financial and other)
with
respect to the Company to be set forth therein. The term
“
Prospectus
” means the Basic Prospectus, as supplemented by the
prospectus supplement including pricing information specifically relating to
the
Securities in the form filed pursuant to Rule 424(b) under the Act (or in the
form first made available to the Underwriter by the Company to meet requests
of
purchasers pursuant to Rule 173 under the Act) and the term “
preliminary
prospectus
” means any preliminary form of the Prospectus including the
“subject to completion” legend required by Item 501(b)(10) under Regulation S-K
under the Act which has heretofore been filed pursuant to Rule 424 under the
Act. The term “
Time of Sale Prospectus
” means
the
Basic
Prospectus, as supplemented by the preliminary prospectus last filed before
the
Applicable Time (as defined below) pursuant to Rule 424 under the Act relating
specifically to the Securities, as of 1:25 P.M. on October 3, 2007 (the
“
Applicable Time
”), together with the free writing prospectuses, if any,
identified in Schedule II hereto, and the term “
free writing prospectus
”
has the meaning set forth in Rule 405 under the Act. As used herein,
the terms “Registration Statement,” “Basic Prospectus,” “preliminary
prospectus,” “Time of Sale Prospectus” and “Prospectus” shall include the
documents, if any, incorporated by reference therein. The terms
“supplement,” “amendment,” and “amend” as used herein with respect to the
Registration Statement, the Basic Prospectus, any preliminary prospectus, the
Time of Sale Prospectus, the Prospectus or any free writing prospectus shall
be
deemed to refer to and include the filing of any free writing prospectus and
the
filing of any document under the Securities Exchange Act of 1934, as amended
(the “
Exchange Act
”) that are deemed to be incorporated therein by
reference.
1.
Representations
and Warranties
. The Company represents and warrants to, and
agrees with, the Underwriter that:
(a)
The
Company meets the requirements for use of an “automatic shelf registration
statement” as defined under Rule 405 under the Act, on Form S-3, and has filed
with the Commission the Registration Statement, which has become
effective. The Registration Statement meets the requirements set
forth in Rule 415(a)(1)(x) under the Act and complies in all other material
respects with said Rule.
(b)
(i) Each
document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Time of Sale Prospectus or the Prospectus
complied or will comply when so filed in all material respects with the Exchange
Act and the applicable rules and regulations of the Commission thereunder,
(ii) each part of the Registration Statement, when such part became
effective, did not contain, and each such part, as amended or supplemented,
if
applicable, will not contain any untrue statement of a material fact or omit
to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) the Registration Statement as of
the date hereof and as of the Closing Date (as defined in Section 3) does not
contain any untrue statement of a material fact or omit to state a material
fact
required to be stated therein or necessary to make the statements therein not
misleading, (iv) the Registration Statement and the Prospectus comply, and
as amended or supplemented, if applicable, will comply, and the Indenture will
comply, in all material respects with the Act, the Trust Indenture Act, and
the
Exchange Act and the applicable rules and regulations thereunder, (v) each
free
writing prospectus filed by the Company, as of its issue date and at all
subsequent times through the completion of the public offer and sale of the
Securities, did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information contained in the
Registration Statement or the Prospectus, including
any
document incorporated by reference therein and any preliminary or other
prospectus deemed to be a part thereof that has not been superseded or modified,
as they exist as of the time of filing of such free writing prospectus,
(vi) the Time of Sale Prospectus does not, and at the time of each sale of
the Securities in connection with the offering and at the Closing Date, as
then
amended or supplemented by the Company, if applicable, will not, contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, and (vii) the Prospectus, as of its date
and as of the Closing Date, does not and will not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this paragraph
do
not apply to statements or omissions in the Registration Statement, the
Time of Sale Prospectus or the Prospectus as of its date and the Closing Date
based upon information relating to the Underwriter or any underwriting
arrangements furnished to the Company in writing by the Underwriter specifically
for use therein.
(c)
The
financial statements of the Company and its consolidated subsidiaries included
in the Registration Statement fairly present the financial condition and results
of operations of the Company and its consolidated subsidiaries as of the dates
indicated and the results of operations and changes in financial position for
the periods therein specified; neither the Company nor any of its consolidated
subsidiaries has sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus or Time
of
Sale Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus and Time of Sale Prospectus;
and, since the respective dates as of which information is given in the
Registration Statement and the Basic Prospectus, there has not been any material
change in the capital stock (other than issuances of common stock upon the
exercise of outstanding employee stock options or pursuant to existing employee
compensation plans) or long-term debt of the Company or any of its subsidiaries
or any material adverse change, or any development involving a prospective
material adverse change, in the condition (financial or other), earnings,
business or properties of the Company and its consolidated subsidiaries taken
as
a whole whether or not arising from transactions in the ordinary course of
business, except as set forth or contemplated in the Prospectus and Time of
Sale
Prospectus.
(d)
At
the
time of filing the Registration Statement, at the time of the most recent
amendment thereto for the purposes of complying with Section 10(a)(3) of
the Act (whether such amendment was by post-effective amendment, incorporated
report filed pursuant to Section 13 or 15(d) of the
Exchange
Act or form of prospectus), and at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of Rule 163(c)
under the Act) made any offer relating to the Securities in reliance on the
exemption of Rule 163 under the Act, the Company was a “well-known seasoned
issuer” as defined in Rule 405 under the Act.
(e)
The
Company is not an “ineligible issuer” in connection with the offering pursuant
to Rules 164, 405 and 433 under the Act. Any free writing prospectus
that the Company is required to file pursuant to Rule 433(d) under the Act
has
been, or will be, filed with the Commission in accordance with the requirements
of the Act and the applicable rules and regulations of the Commission
thereunder. Each free writing prospectus that the Company has filed,
or is required to file, pursuant to Rule 433(d) under the Act or that was
prepared by or on behalf of or used by the Company complies or will comply
in
all material respects with the requirements of the Act and the applicable rules
and regulations of the Commission thereunder. Except for the free
writing prospectuses, if any, identified in Schedule II hereto, and electronic
road shows each furnished to you before first use, the Company has not prepared,
used or referred to, and will not, without your prior consent, prepare, use
or
refer to, any free writing prospectus.
(f)
The
Company has been duly incorporated and is validly existing as a corporation
under the laws of the jurisdiction of its incorporation, with power and
authority (corporate and other) to own, lease and operate its properties and
to
conduct its business as described in the Basic Prospectus and has been duly
qualified as a foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, or is subject to no material liability or disability by reason
of
the failure to be qualified in any such jurisdiction; and each subsidiary of
the
Company organized under the laws of the United States representing 10% or more
of the consolidated earnings before income taxes and extraordinary items or
consolidated total assets of the Company (each such subsidiary as set forth
in
Schedule III hereto, a “
Significant Subsidiary
”) has been duly
incorporated and is validly existing as a corporation under the laws of its
jurisdiction of incorporation except where the failure to be so qualified would
not have a material adverse effect on the Company and the subsidiaries taken
as
a whole.
(g)
The
Company has an authorized capitalization as set forth in the Time of Sale
Prospectus and the Prospectus, and all of the issued shares of capital stock
of
the Company have been duly and validly authorized and issued and are fully
paid
and non-assessable.
(h)
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, in the case of Securities
representing capital stock of the Company, will be fully paid and nonassessable)
and will constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture; such Indenture has been
duly
qualified under the Trust Indenture Act and, at the Closing Date (as hereinafter
defined) for any Securities, such Securities will constitute valid and legally
binding obligations of the Company, enforceable in accordance with their
respective terms, subject, as to enforcement, to bankruptcy, insolvency,
fraudulent transfer, moratorium and other similar laws relating to or affecting
creditors’ rights generally and to general principles of equity.
(i)
The
issue
and sale of the Securities and the compliance by the Company with all of the
provisions of the Securities, this Agreement and the Indenture, and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any material indenture, mortgage,
deed of trust, loan agreement or other material agreement or instrument to
which
the Company or any subsidiary is a party or by which the Company or any
subsidiary is bound or to which any of the property or assets of the Company
or
any subsidiary is subject, except for such conflicts, breaches, violations
or
defaults as would not, individually or in the aggregate, have a material adverse
effect on the consolidated financial position of the Company and its
subsidiaries, taken as a whole or the consummation by the Company of the
transactions contemplated by this Agreement and the Indenture, nor will such
action result in any violation of the provisions of (i) the articles of
incorporation or bylaws of the Company or any Significant Subsidiary or (ii)
any
statute or any order, rule or regulation of any court or governmental agency
or
body having jurisdiction over the Company, any subsidiary or any of its
respective properties, except, in the case of (ii) above, for such violations
that would not, individually or in the aggregate, have a material adverse effect
on the consolidated financial position of the Company and its subsidiaries
taken
as a whole or the consummation by the Company of the transactions contemplated
by this Agreement and the Indenture; and no consent, approval, authorization,
order, registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Securities or the
consummation by the Company of the transactions contemplated by the Securities,
this Agreement and the Indenture, except such as have been, or will have been
prior to the time of delivery, obtained under the Act and in the case of
Securities to be issued under an Indenture, the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as may
be
required under state securities or Blue Sky laws in connection with the purchase
and distribution of the Securities by the Underwriter.
(j)
Other
than as set forth in the Prospectus and the Time of Sale Prospectus, there
are
no legal or governmental proceedings pending to which the Company or any of
its
subsidiaries is a party or of which any property of the
Company
or any of its subsidiaries is the subject which would individually or in the
aggregate be reasonably likely to have a material adverse effect on the
consolidated financial position, stockholders’ equity or results of operations
of the Company and its subsidiaries taken as a whole; and, to the best of the
Company’s knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(k)
The
Company and its subsidiaries own or possess, or can acquire on reasonable terms,
all material trademarks, service marks and trade names necessary to conduct
the
business now operated by them, and neither the Company nor any of its
subsidiaries has received any notice of infringement of or conflict with
asserted rights of others with respect to any trademarks, service marks or
trade
names that singly or in the aggregate, would be reasonably likely to materially
adversely affect the conduct of the business, operations, financial condition
or
income of the Company and its subsidiaries considered as a whole.
(l)
The
Company is not, and after giving effect to the issuance and sale of the
Securities will not be an “investment company” or an entity controlled by an
“investment company” required to be registered under the Investment Company Act
of 1940, as amended.
(m)
To
the
best of the Company’s knowledge and belief, the Company has complied in all
material respects with, and the conduct of its business and the conduct of
business by its subsidiaries does not violate in any material respect, any
statute, law, regulation, rule, order or directive of any federal, state or
local governmental authority applicable to the Company and its
subsidiaries.
2.
Purchase
and Sale
. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees
to
sell to the Underwriter, and the Underwriter agrees to purchase from the
Company, at the purchase price set forth in Schedule I hereto the principal
amount of the Securities.
3.
Delivery
and Payment
. Securities to be purchased by the Underwriter
hereunder, in definitive form to the extent practicable, and in such authorized
denominations and registered in such names as the Underwriter may request upon
at least forty-eight hours’ prior notice to the Company, shall be delivered by
or on behalf of the Company to the Underwriter for its account at the office
of
Sullivan & Cromwell LLP, on the date and at the time specified in Schedule I
hereto (or such later date not later than five business days after such
specified date as the Underwriter shall designate), which date and time may
be
postponed by agreement between the Underwriter and the Company or as provided
in
Section 8 hereof (such date and time of delivery and payment for the
Securities being herein called the “
Closing Date
”). Delivery
of the Securities shall be made to the Underwriter for the account of the
Underwriter against payment by it of the purchase price thereof in Federal
(same
day) funds by official bank check or checks to or upon the order of the Company
or by wire
transfer
to an account specified by the Company, checks payable in New York Clearing
House (next day) funds or as otherwise set forth in Schedule I.
The
Company agrees to have the Securities available for inspection, checking and
packaging by the Underwriter in New York, New York, not later than 1:00 PM
on the business day prior to the Closing Date.
4.
Agreements
.
|
(A)
|
The
Company agrees with the Underwriter
that:
|
(a)
Prior
to
the termination of the offering of the Securities, the Company will not file
any
amendment or supplement to the Registration Statement, the Basic Prospectus
or
the Time of Sale Prospectus and will not provide additional information to
the
Commission relating to the Registration Statement, the Basic Prospectus or
the
Time of Sale Prospectus unless the Company has furnished you a copy for your
review and provided you with a reasonable opportunity to comment on such
proposed amendment, supplement, or information prior to filing or submitting
the
same and will not file any such proposed amendment or supplement and will not
submit such additional information to which you reasonably
object. The Company will promptly advise the Underwriter and will
promptly confirm such advice in writing (i) when the Prospectus shall have
been filed (or transmitted for filing) with the Commission pursuant to
Rule 424, (ii) when any amendment to the Registration Statement
relating to the Securities shall have been filed or become effective,
(iii) of any request by the Commission for any amendment of the
Registration Statement or amendment of or supplement to the Prospectus or for
any additional information, (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or of
any
notice objecting to its use or the institution or threatening of any proceeding
for such purpose and (v) of the receipt by the Company of any notification
with respect to the suspension of the qualification of Securities for sale
in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as possible
the withdrawal thereof.
(b)
As
soon
as practicable but in any event not later than eighteen months after the deemed
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), the Company will make generally available to its securityholders
and to the Underwriter a consolidated earnings statement or statements of the
Company and its subsidiaries (which need not be audited) which will satisfy
the
provisions of Section 11(a) of the Act and the rules and regulations
thereunder (including at the option of the Company Rule 158 under the
Act).
(c)
The
Company will furnish to the Underwriter and counsel for the Underwriter, without
charge, a signed copy of the Registration Statement (including exhibits thereto
and documents incorporated by reference) and will deliver to the Underwriter
during the period mentioned in Section 4(A)(e) or 4(A)(f) below, as many
copies of the Time of Sale Prospectus, the Prospectus, any documents
incorporated therein by reference therein and any supplements and amendments
thereto or to the Registration Statement as you may reasonably
request.
(d)
If
the
Time of Sale Prospectus is being used to solicit offers to buy the Securities
at
a time when the Prospectus is not yet available to prospective purchasers and
any event shall occur or condition exist as a result of which it is necessary
to
amend or supplement the Time of Sale Prospectus in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if any event shall occur or condition exist as a result of which
the Time of Sale Prospectus conflicts with the information contained in the
Registration Statement then on file, or if, in the opinion of counsel for the
Underwriter, it is necessary to amend or supplement the Time of Sale Prospectus
to comply with applicable law, forthwith to prepare, file with the Commission
and furnish, at its own expense, to the Underwriter and to any dealer upon
request, either amendments or supplements to the Time of Sale Prospectus so
that
the statements in the Time of Sale Prospectus as so amended or supplemented
will
not, in the light of the circumstances under which they were made when delivered
to a prospective purchaser, be misleading or so that the Time of Sale
Prospectus, as amended or supplemented, will no longer conflict with the
Registration Statement, or so that the Time of Sale Prospectus, as amended
or
supplemented, will comply with law.
(e)
If,
during such period after the first date of the public offering of the Securities
as in the opinion of counsel for the Underwriter the Prospectus (or in lieu
thereof the notice referred to in Rule 173(a) under the Act) is required by
law
to be delivered in connection with sales by an Underwriter or dealer, any event
shall occur or condition exist as a result of which it is necessary to amend
or
supplement the Prospectus in order to make the statements therein, in the light
of the circumstances under which they were made when the Prospectus (or in
lieu
thereof the notice referred to in Rule 173(a) under the Act) is delivered to
a
purchaser, not misleading, or if, in the opinion of counsel for the Underwriter,
it is necessary to amend or supplement the Prospectus to comply with applicable
law, forthwith to prepare, file with the Commission and furnish, at its own
expense, to the Underwriter and to the dealers (whose names and addresses you
will furnish to the Company) to which Securities may have been sold by you
and
to any other dealers upon request, either amendments or supplements to the
Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the
light
of
the circumstances under which they were made when the Prospectus (or in lieu
thereof the notice referred to in Rule 173(a) under the Act) is delivered to
a
purchaser, be misleading or so that the Prospectus, as amended or supplemented,
will comply with law.
(f)
The
Company will promptly from time to time arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the Underwriter
may
reasonably designate, will maintain such qualifications in effect so long as
required for the distribution of the Securities, and will arrange for the
determination of the legality of the Securities for purchase by institutional
investors; provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to execute a general consent
to
service of process in any jurisdiction or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise
subject.
(g)
Until
the
business day following the Closing Date, the Company will not, without the
consent of the Underwriter, offer, sell or contract to sell, or announce the
offering of, any debt securities covered by the Registration Statement or any
other registration statement filed under the Act.
(h)
The
Company covenants and agrees with the Underwriter that the Company will pay
or
cause to be paid the following: (i) the fees, disbursements and
expenses of the Company’s counsel and accountants in connection with the
registration of the Securities under the Act in connection with the preparation,
printing and filing of the Registration Statement, any preliminary prospectus,
the Time of Sale Prospectus, the Prospectus and any free writing prospectus
prepared by or on behalf of, used by, or referred to by the Company and
amendments and supplements to any of the foregoing, including all printing
costs
associated therewith, and the mailing and delivering of copies thereof to the
Underwriter and dealers, in the quantities hereinabove specified; (ii) the
cost of printing or producing this Agreement, any Blue Sky Survey, any Legal
Investment Memoranda and any other documents in connection with the offering,
purchase, sale and delivery of the Securities; (iii) all expenses in
connection with the qualification of the Securities for offering and sale under
state securities and Blue Sky laws as provided in Section 4(A)(e) hereof,
including any reasonable fees and disbursements of counsel for the Underwriter
in connection with such qualification and in connection with the Blue Sky and
legal investment surveys; (iv) any fees charged by securities rating
services for rating the Securities; (v) the cost of preparing the
Securities; (vi) the fees and expenses of any Trustee, Paying Agent, or
Transfer Agent and counsel for any such Trustee, Paying Agent or Transfer Agent
in connection with the Securities; and (vii) all other costs and expenses
incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this
Section. It
is understood, however, that, except as provided in this Section, Section 6
and Section 7 hereof, the Underwriter will pay all of its own costs and
expenses, including the fees of its counsel, transfer taxes on resale of any
of
the Securities by it, and any advertising expenses connected with any offers
it
may make.
(i)
The
Company will prepare the Prospectus as amended and supplemented in relation
to
the applicable Securities in a form approved by the Underwriter and will file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission’s close of business on the second business day following the
execution and delivery of this Agreement or, if applicable, such other time
as
may be required by Rule 424(b) and file promptly and simultaneously provide
the Underwriter with a copy of all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so
long as the delivery (or in lieu thereof the notice referred to in Rule 173(a)
under the Act) of a prospectus is required in connection with the offering
or
sale of such Securities. The Company will prepare a final term sheet,
containing solely a description of the Securities, in a form approved by the
Underwriter and file such term sheet pursuant to Rule 433(d) under the Act
within the time required by such Rule, and will file promptly all other material
required to be filed by the Company with the Commission pursuant to
Rule 433(d) under the Act.
(j)
During
a
period of five years from the date of the Basic Prospectus and, provided the
following are not available on the Commission’s EDGAR database, to furnish to
the Underwriter copies of all reports or other communications (financial or
other) furnished to stockholders, and deliver to the Underwriter (i) as
soon as they are available, copies of any reports and financial statements
furnished to or filed with any national securities exchange on which the
Securities or any class of securities of the Company is listed or, if requested
by the Underwriter, the Commission; and (ii) such additional information
concerning the business and financial condition of the Company as the
Underwriter may from time to time reasonably request (provided such financial
statements and reports are otherwise furnished to its stockholders generally
or
to the Commission).
(k)
The
Company has given the Underwriter notice of any filings made pursuant to the
Exchange Act or the rules or regulations thereunder within 48 hours prior to
the
Applicable Time; the Company will give the Underwriter notice of its intention
to make any such filing from the time of each sale of the Securities to the
Closing Date and will furnish the Underwriter with copies of any such documents
a reasonable amount of time prior to such proposed filing and will not file
or
use any such document to which the Underwriter or counsel for the Underwriter
shall reasonably object.
(l)
During
the period beginning on the date hereof and continuing for a period of 3
business days from the date hereof, the Company will not offer, sell, contract
to sell or otherwise dispose of any debt securities of the Company or warrants
to purchase or otherwise acquire debt securities of the Company substantially
similar to the Securities (other than (i) the Securities, (ii) commercial
paper issued in the ordinary course of business, or (iii) securities or
warrants permitted with the prior written consent of the
Underwriter).
(B)
The
Underwriter and the Company agree as follows:
(a)
The
Company agrees that, unless it has obtained or will obtain the prior written
consent of the Underwriter, and the Underwriter agrees that, unless it has
obtained or will obtain, as the case may be, the prior written consent of the
Company, it has not made and will not make any offer relating to the Securities
that would constitute an issuer free writing prospectus as defined in Rule
433
(an “
Issuer Free Writing Prospectus
”) or that would otherwise constitute
a free writing prospectus required to be filed by the Company with the
Commission or retained by the Company under Rule 433, other than the information
contained in any final term sheet prepared and filed pursuant to Section 4(A)(i)
hereto;
provided
that the prior written consent of the parties hereto
shall be deemed to have been given in respect of the free writing prospectuses,
if any, included in Schedule II hereto. Any such free writing prospectus
consented to by the Underwriter and the Company is hereinafter referred to
as a
“
Permitted Free Writing Prospectus
.” The Company agrees that
(i) it has treated and will treat, as the case may be, each Permitted Free
Writing Prospectus as an Issuer Free Writing Prospectus and (ii) it has complied
and will comply, as the case may be, with the requirements of Rules 164 and
433
applicable to any Permitted Free Writing Prospectus, including in respect of
timely filing with the Commission, legending and record keeping.
5.
Conditions
to the Obligations of the Underwriter
. The obligations of the
Underwriter to purchase the Securities under this Agreement shall be subject
to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the date hereof, as of the date of the Time of Sale
Prospectus, as of the date of the effectiveness of any amendment to the
Registration Statement filed prior to the Closing Date with respect to such
Securities (including the filing of any document incorporated by reference
therein) and as of the Closing Date with respect to such Securities, to the
accuracy of the statements of the Company made in any certificates pursuant
to
the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a)
No
stop
order suspending the effectiveness of the Registration Statement, as amended
from time to time, or any notice objecting to its
use
shall have been issued and no proceedings for that
purpose shall have been instituted or
threatened;
all requests by the Commission for additional information shall have been
complied with to the satisfaction of the Underwriter; and the Prospectus with
respect to such Securities shall have been filed or transmitted for filing
with
the Commission pursuant to Rule 424(b) not later than the Commission’s
close of business on the second day following the execution and delivery of
this
Agreement or, if applicable, such other time as may be required by
Rule 424(b).
(b)
Subsequent
to the execution and delivery of this Agreement and prior to the Closing Date,
there shall not have occurred any downgrading, nor shall notice have been given
of any intended or potential downgrading or other review in the rating accorded
any securities of, or guaranteed by, the Company by any “nationally recognized
statistical rating organization,” as such term is defined for purposes of
Rule 436(g)(2) under the Act.
(c)
The
Company shall have furnished to the Underwriter the opinion of Dennis L. Schoff,
Senior Vice President and General Counsel of the Company, dated the Closing
Date, to the effect that:
(i)
The
Company and each Significant Subsidiary of the Company has been duly
incorporated and is a duly existing corporation under the laws of its respective
state of incorporation, with corporate power and authority to own its properties
and conduct its business as described in the Time of Sale Prospectus and the
Prospectus; and neither the Company nor any such subsidiary is required to
be
qualified to do business as a foreign corporation in any other jurisdiction
in
which failure to so qualify would have a material adverse effect on the business
of the Company and its subsidiaries taken as a whole;
(ii)
(A)
At
the time of filing the Registration Statement, at the time of the most
recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act (whether such amendment was by post-effective
amendment, incorporated report filed pursuant to Section 13 or 15(d) of the
Exchange Act or form of prospectus), and at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of Rule 163(c)
under the Act) made any offer relating to the Securities in reliance on the
exemption of Rule 163 under the Act, the Company was a “well-known seasoned
issuer” as defined in Rule 405 under the Act; and (B) at the earliest time after
the filing of the Registration Statement that the Company or another offering
participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of
the
Securities, the Company was not an “ineligible issuer” as defined in Rule 405
under the Act;
(iii)
The
Securities have been duly authorized, executed, authenticated, issued and
delivered; the Securities constitute valid and
legally
binding obligations of the Company entitled to the benefits and security
provided by the Indenture; and the Securities conform to the description thereof
contained in the Time of Sale Prospectus and the Prospectus;
(iv)
No
consent, approval, authorization or order of, or filing with, any governmental
agency or body or any court is required for the consummation of the transactions
contemplated by this Agreement in connection with the issuance or sale of the
Securities by the Company, except such as have been obtained and made under
the
Act and the Trust Indenture Act and such as may be required under state
securities laws;
(v)
The
issue
and sale of the Securities and the compliance by the Company with all of the
provisions of the Securities, this Agreement and the Indenture, and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any material indenture, mortgage,
deed of trust, loan agreement or other material agreement or instrument to
which, to the knowledge of such counsel, the Company or any such subsidiary
is a
party or by which the Company or any such subsidiary is bound or to which any
of
the property or assets of the Company or any such subsidiary is subject, except
for such conflicts, breaches, violations or defaults as would not, individually
or in the aggregate, have a material adverse effect on the consolidated
financial position of the Company and its subsidiaries taken as a whole or
the
consummation by the Company of the transactions contemplated by this Agreement
and the Indenture, nor will such action result in any violation of the
provisions of (i) the articles of incorporation or bylaws of the Company or
any
Significant Subsidiary or (ii) any statute or any order, rule or regulation
of
any court or governmental agency or body having jurisdiction over the Company,
any subsidiary or any of its respective properties, except, in the case of
(ii)
above, for such violations that would not, individually or in the aggregate,
have a material adverse effect on the consolidated financial position of the
Company and its subsidiaries taken as a whole or the consummation by the Company
of the transactions contemplated by this Agreement and the
Indenture;
(vi)
The
descriptions in the Registration Statement, the Time of Sale Prospectus and
the
Prospectus of legal and governmental proceedings and contracts and other
documents and the descriptions of statutes in the section captioned “Regulatory”
(or similar) caption in item 1 of the Company’s most recently filed Form 10-K
are accurate in all material respects and fairly present the information
required to be shown; no legal or governmental proceedings are required to
be
described in the Time of Sale Prospectus and the Prospectus which are not
described as required or
any
contracts or documents of a character required to be described in the
Registration Statement, the Time of Sale Prospectus or the Prospectus or to
be
filed as exhibits to the Registration Statement which are not described and
filed as required; it being understood that such counsel need express no opinion
as to the financial statements or other financial data contained in the
Registration Statement, the Time of Sale Prospectus or the
Prospectus;
(vii)
This
Agreement has been duly authorized, executed and delivered by the Company;
and
(viii)
Except
as
described in the Time of Sale Prospectus and the Prospectus, there is no action,
suit or proceeding pending, nor to the best of such counsel’s knowledge, is
there any action, suit or proceeding threatened, which might reasonably be
expected to result in a material adverse change in the financial condition,
results of operations or business of the Company and its subsidiaries taken
as a
whole or which is required to be disclosed in the Registration
Statement.
In
rendering such opinion, such counsel shall also state that although such counsel
has not undertaken to determine independently, does not express an opinion
as
to, and does not assume any responsibility for, the accuracy, completeness
or
fairness of the statements contained in the Registration Statement, the Time
of
Sale Prospectus or the Prospectus and has made no independent check or
verification thereof (except for those referred to in the opinion in subsection
(vi) of this Section 5(c)), no facts have come to such counsel’s attention that
have caused such counsel to believe that (i) each part of the Registration
Statement, when such part became effective, or any further amendment thereto
made by the Company prior to the date hereof (other than the financial
statements and the financial data and related schedules incorporated by
reference or included therein or excluded therefrom, and the exhibits to the
Registration Statement including the Form T-1, as to which such counsel
expresses no opinion or belief), contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading, (ii) as of
the
Applicable Time, the Time of Sale Prospectus (other than the financial
statements and financial 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 expresses no opinion
or belief) contained an untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements therein, in light
of
the circumstances under which they were made, not misleading or (iii) as of
its
date and the Closing Date, the Prospectus as then amended or supplemented or
as
amended or supplemented by any further amendment or supplement thereto made
by
the Company prior to the date hereof (other than the financial statements and
financial data and related schedules
incorporated
by reference or included therein or excluded therefrom, and the exhibits to
the
Registration Statement including the Form T-1, as to which such counsel
expresses no opinion or belief) contained or contains an untrue statement of
a
material fact or omitted or omits to state a material fact necessary to make
the
statements therein, in light of the circumstances under which they were made,
not misleading.
Solely
for purposes of rendering the opinion referred to in (iii) above, Dennis L.
Schoff, General Counsel of the Company may rely, as to matters of New York
law,
on the opinion of Blank Rome LLP referred to below.
(d)
The
Underwriter shall have received an opinion, dated the Closing Date, of Blank
Rome LLP, counsel for the Company, to the effect that:
(i)
The
Securities constitute valid and legally binding obligations of the Company
entitled to the benefits and security provided by the Indenture; and the
Securities conform to the description thereof contained in the Time of Sale
Prospectus and the Prospectus;
(ii)
The
Indenture has been duly authorized, executed and delivered by the Company,
and
constitutes a valid and legally binding obligation of Company enforceable in
accordance with terms;
(iii)
No
consent, approval, authorization or order of, or filing with, any governmental
agency or body or any court is required for the consummation of the transactions
contemplated by this Agreement in connection with the issuance or sale of the
Securities by the Company, except such as have been obtained and made under
the
Act and the Trust Indenture Act and such as may be required under state
securities laws;
(iv)
The
issue
and sale of the Securities and the compliance by the Company with all of the
provisions of the Securities, this Agreement and the Indenture, and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a violation of any of the provisions of the Act,
the
Exchange Act, the Trust Indenture Act or the rules and regulations issued
pursuant to such acts;
(v)
This
Agreement has been duly authorized, executed and delivered by the
Company;
(vi)
The
statements in the Time of Sale Prospectus and the Prospectus under “Description
of the Notes”, insofar as they purport to constitute a summary of the terms of
the Securities, fairly summarize such provisions in all material
respects;
(vii)
The
Company is not an “investment company” or an entity controlled by an “investment
company” required to be registered under the Investment Company Act of 1940, as
amended; and
(viii)
The
Registration Statement has become effective under the Act, and to such counsel’s
knowledge, no stop order suspending the effectiveness of the Registration
Statement or any part thereof, or any notice objecting to its use, has been
issued, and no proceedings for that purpose have been instituted or are pending
or contemplated under the Act; the Registration Statement, the Time of Sale
Prospectus and the Prospectus, as amended or supplemented and any further
amendments thereto made by the Company prior to the Closing Date (in each case
other than the financial statements, financial data and related schedules
incorporated by reference or included therein or excluded therefrom, and the
exhibits to the Registration Statement including the Form T-1, as to which
such
counsel expresses 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.
In
rendering such opinion, such counsel shall also state that although such counsel
has not undertaken to determine independently, does not express an opinion
as
to, and does not assume any responsibility for, the accuracy, completeness
or
fairness of the statements contained in the Registration Statement, the Time
of
Sale Prospectus or the Prospectus and has made no independent check or
verification thereof (except in connection with the rendering of the legal
opinions set forth in this Section 5(d) of this Agreement), no facts have come
to such counsel’s attention that have caused such counsel to believe that (i)
each part of the Registration Statement, when such part became effective, or
any
further amendment thereto made by the Company prior to the date hereof (other
than the financial statements and the financial data and related schedules
incorporated by reference or included therein or excluded therefrom, and the
exhibits to the Registration Statement including the Form T-1, as to which
such
counsel expresses no opinion or belief) contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein not misleading, (ii) as
of
the Applicable Time, the Time of Sale Prospectus (other than the financial
statements and financial 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 expresses no opinion
or belief) contained an untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements therein, in light
of
the circumstances under which they were made, not misleading, or (iii) as of
its
date and the Closing Date, the Prospectus as amended or supplemented or as
amended or supplemented by any further amendment or supplement thereto made
by
the Company prior to
the
date
hereof (other than the financial statements and financial data and related
schedules incorporated by reference or included therein or excluded therefrom,
and the exhibits to the Registration Statement including the Form T-1, as to
which such counsel expresses no opinion or belief) contained or contains an
untrue statement of a material fact or omitted or omits to state a material
fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
Solely
for purposes of rendering the opinions referred to in (ii) and (v) above, Blank
Rome LLP may rely, as to matters of Indiana law, on the opinion of Dennis L.
Schoff
,
General Counsel of the Company referred to
above.
(e)
The
Underwriter shall have received from Sullivan & Cromwell LLP, counsel
for the Underwriter, such opinion or opinions, dated the Closing Date, with
respect to the issuance and sale of the Securities, the Indenture, the
Registration Statement, the Time of Sale Prospectus, the Prospectus and other
related matters as the Underwriter may reasonably require, and the Company
shall
have furnished to such counsel such documents as it requests for the purpose
of
enabling it to pass upon such matters.
(f)
The
Company shall have furnished to the Underwriter a certificate of the Company,
signed by the Chairman of the Board, the Chief Executive Officer or a Senior
Vice President and the principal financial or accounting officer of the Company,
dated the Closing Date, to the effect that the signers of such certificate
have
carefully examined the Registration Statement, the Time of Sale Prospectus,
the
Prospectus, and this Agreement and that to the best of their knowledge after
reasonable investigation:
(i)
The
representations and warranties of the Company in this Agreement are true and
correct on and as of the Closing Date with the same effect as if made on the
Closing Date and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or prior to
the
Closing Date;
(ii)
No
stop
order suspending the effectiveness of the Registration Statement, as amended,
has been issued and no proceedings for that purpose have been instituted or,
to
the Company’s knowledge, threatened; and
(iii)
Since
the
date of the latest audited financial statements included or incorporated by
reference in the Time of Sale Prospectus and the Prospectus, neither the Company
nor any of its consolidated subsidiaries has sustained any material loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, and there has been no material adverse
change in
the
condition (financial or other), earnings, business or properties of the Company
and its consolidated subsidiaries, whether or not arising from transactions
in
the ordinary course of business, except as set forth in or contemplated by
the
Time of Sale Prospectus and the Prospectus.
(g)
At
the
time this Agreement is executed and at the Closing Date, Ernst & Young
LLP, as independent accountants for the Company, shall have furnished to the
Underwriter a letter or letters (which may refer to letters previously delivered
to the Underwriter), dated such date, in substantially the form attached hereto
as Annex I.
(h)
Subsequent
to the respective dates as of which information is given in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, there shall not
have
occurred (i) any material adverse change, or any development involving a
prospective material adverse change, in the condition, financial or otherwise,
or in the earnings, business or operations of the Company and its subsidiaries,
taken as a whole, from that set forth in the Time of Sale Prospectus or
(ii) any material change or decrease in those items specified in the letter
or letters referred to in paragraph (g) of this Section 5 the effect
of which, in any case referred to in clause (i) or (ii) above, is, in the
judgment of the Underwriter, to make it impractical or inadvisable to proceed
with the offering or the delivery of the Securities as contemplated by the
Registration Statement, the Time of Sale Prospectus and the
Prospectus.
(i)
Prior
to
the Closing Date, the Company shall have furnished to the Underwriter such
further information, certificates and documents as the Underwriter may
reasonably request.
If
any of
the conditions specified in this Section 5 shall not have been fulfilled in
all material respects when and as provided in this Agreement, or if any of
the
opinions and certificates mentioned above or elsewhere in this Agreement shall
not be in all material respects reasonably satisfactory in form and substance
to
the Underwriter and its counsel, this Agreement and all obligations of the
Underwriter hereunder may be canceled at, or at any time prior to, the Closing
Date by the Underwriter. Notice of such cancellation shall be given
to the Company in writing or by telephone or telegraph confirmed in
writing.
6.
Reimbursement
of Underwriter’s Expenses
. If the sale of the Securities provided
for herein is not consummated because any condition to the obligations of the
Underwriter set forth in Section 5 hereof is not satisfied, because of any
termination pursuant to Section 9 hereof or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by the
Underwriter, the Company will reimburse the Underwriter upon demand for all
out-of-pocket expenses (including reasonable fees
and
disbursements of counsel) that shall have been incurred by it in connection
with
the proposed purchase and sale of the Securities.
7.
Indemnification
and Contribution
.
(a)
The
Company agrees to indemnify and hold harmless the Underwriter and each person
who controls the Underwriter within the meaning of either the Act or the
Exchange Act against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the Act,
the
Exchange Act or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement, the Time of Sale Prospectus, any preliminary prospectus, any free
writing prospectus that the Company has filed, or is required to file, pursuant
to Rule 433(d) under the Act, or the Prospectus, or in any amendment thereof
or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action;
provided
,
however
, that
the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information relating
to
such Underwriter or the underwriting arrangements furnished to the Company
by
such Underwriter specifically for use in the Time of Sale Prospectus, any free
writing prospectus that the Company has filed, or is required to file, pursuant
to Rule 433(d) under the Act or the Prospectus. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(b)
The
Underwriter 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
the Underwriter, but only with reference to written information relating to
the
Underwriter or the underwriting arrangements furnished to the Company by such
Underwriter specifically for use in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
the Underwriter may otherwise have.
(c)
Promptly
after receipt by an indemnified party under Section 7(a) or
Section 7(b) of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party
under Section 7(a) or Section 7(b), notify the indemnifying party in
writing of the commencement thereof, but the omission so to notify the
indemnifying party will not relieve it from any liability which it may have
to
any indemnified party otherwise than under Section 7(a) or
Section 7(b). In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein, and
to
the extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified party,
to assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party;
provided
,
however
, that if the defendants
in any such action include both the indemnified party and the indemnifying
party
and the indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party,
the
indemnified party or parties shall have the right to select separate counsel
to
assert such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt
of notice from the indemnifying party to such indemnified party of its election
so as to assume the defense of such action and approval by the indemnified
party
of counsel, the indemnifying party will not be liable to such indemnified party
under this Section 7 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof unless
(i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to one local counsel in each applicable
jurisdiction), approved by the Underwriter in the case of paragraph (a) of
this Section 7, representing the indemnified parties under such
paragraph (a) who are parties to such action), (ii) the indemnifying
party shall not have employed counsel reasonably satisfactory to the indemnified
party to represent the indemnified party within a reasonable time after notice
of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense
of
the indemnifying party; and except that, if clause (i) or (iii) is
applicable, such liability shall be only in respect of the counsel referred
to
in such clause (i) or (iii). The indemnifying party shall have the right
to, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party so long as such settlement (i) is
limited to the payment of monetary damages only, (ii) includes an unconditional
release of the indemnified party from all liability arising out of such
proceeding and (iii) does not (x) include a statement as to or an admission
of
fault, culpability or a failure to act by or on behalf of any indemnified party
or (y) otherwise give rise to additional liabilities on the part of the
indemnified party.
(d)
If
the
indemnification provided for in this Section 7 is unavailable to or
insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriter of the Securities on the
other from the offering of the Securities to which such loss, claim, damage
or
liability (or action in respect thereof) relates. If, however, the
allocation provided by the immediately preceding sentence is not permitted
by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute
to such amount paid or payable by such indemnified party in such proportion
as
is appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriter of the Securities
on
the other in connection with the statements or omissions which resulted in
such
losses, claims, damages or liabilities (or action in respect thereof), as well
as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriter on the other shall
be deemed to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the
Underwriter. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the Underwriter on the
other and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Company and the Underwriter agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by
pro
rata
allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions
in
respect thereof) referred to above in this subsection (d) shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this subsection (d),
the Underwriter shall not be required to contribute any amount in excess of
the
amount by which the total price at which the applicable Securities underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages which the Underwriter has otherwise been required to
pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriter for Securities
in this
subsection (d)
to contribute are several in proportion to their respective obligations with
respect to such Securities and not joint.
8.
Default
by the Underwriter
. If the Underwriter shall default in its
obligation to purchase the Securities which it has agreed to purchase under
this
Agreement, then this Agreement shall thereupon terminate, without liability
on
the part of the Company; but nothing herein shall relieve the defaulting
Underwriter from liability for its default.
9.
Termination
. This
Agreement shall be subject to termination in the absolute discretion of the
Underwriter, by notice given to the Company prior to delivery of and payment
for
the Securities, if prior to such time (i) trading in the Company’s common
stock or any preferred stock or preferred securities shall have been suspended
or materially limited by the Commission or the New York Stock Exchange or
trading in securities generally on the New York Stock Exchange shall have been
suspended or limited or minimum prices shall have been established on such
Exchange, (ii) a banking moratorium shall have been declared either by
Federal or New York State authorities, or (iii) there shall have occurred
any outbreak or escalation of hostilities or any change in markets in the United
States or any calamity or crisis that, in the judgment of the Underwriter,
makes
it impracticable or inadvisable to proceed with the offering or the delivery
of
the Securities as contemplated by the Registration Statement, the Time of Sale
Prospectus and the Prospectus.
10.
Representations
and Indemnities to Survive
. The respective agreement,
representations, warranties, indemnities and other statements of the Company
or
its officers and of the Underwriter 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 the Underwriter or the Company or any of the officers,
directors or controlling persons referred to in Section 7 hereof, and will
survive delivery of and payment for the Securities. The provisions of
Sections 6 and 7 hereof shall survive the termination or cancellation of this
Agreement.
11.
Notices
. All
communications hereunder will be in writing and effective only on receipt,
and,
if sent to the Underwriter, will be mailed, delivered, telecopied or telegraphed
and confirmed to it, at the address specified in Schedule I hereto; or, if
sent to the Company, will be mailed, delivered, telecopied or telegraphed to
and
confirmed with it at Lincoln National Corporation, 1500 Market Street,
Suite 3900, Philadelphia, Pennsylvania 19102, telecopy number (215)
448-1400, attention of the Legal Department.
12.
Successors
. This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and the officers and directors and controlling
persons referred to in Section 7 hereof, and no other person will have any
right or obligation hereunder.
13.
Entire
Agreement
. (a) This Agreement, together with any contemporaneous
written agreements and any prior written agreements (to the extent not
superseded by this Agreement) that relate to the offering of the Securities,
represents the entire agreement between the Company and the Underwriter with
respect to the preparation of any preliminary prospectus, the Time of Sale
Prospectus, the Prospectus, the conduct of the offering, and the purchase and
sale of the Securities.
(b)
The
Company acknowledges that in connection with the offering of the
Securities: (i) the Underwriter has acted at arms length, is not an
agent of, and owes no fiduciary duties to, the Company or any other person,
(ii) the Underwriter owes the Company only those duties and obligations set
forth in this Agreement and prior written agreements (to the extent not
superseded by this Agreement), if any, and (iii) the Underwriter may have
interests that differ from those of the Company. The Company waives
to the full extent permitted by applicable law any claims it may have against
the Underwriter arising from an alleged breach of fiduciary duty in connection
with the offering of the Securities.
14.
Counterparts
. This
Agreement may be signed in two or more counterparts, each of which shall be
an
original, with the same effect as if the signatures thereto and hereto were
upon
the same instrument.
15.
Headings
. The
headings of the sections of this Agreement have been inserted for convenience
of
reference only and shall not be deemed a part of this Agreement.
16.
Choice
of Law.
This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
[
signature
page follows
]
|
|
Very
truly yours,
|
|
|
|
|
|
Lincoln
National Corporation
|
|
|
|
|
|
By:
|
/s/
Frederick J. Crawford
|
|
|
|
Name:
|
Frederick
J. Crawford
|
|
|
|
Title:
|
Senior
Vice President
|
|
|
|
|
and
Chief Financial Officer
|
Accepted
as of the date hereof:
Goldman,
Sachs & Co.
Underwriter
By:
/s/ Goldman, Sachs & Co.
SCHEDULE
I
|
LINCOLN
NATIONAL CORPORATION
|
|
$375,000,000
6.30%
SENIOR NOTES
DUE OCTOBER 9, 2037
|
|
Issuer:
|
Lincoln
National Corporation (“LNC”)
|
|
Title
of Securities:
|
6.30%
Senior Notes due 2037 (the “Fixed Rate Notes”)
|
|
Maturity
Date:
|
October
9, 2037
|
|
Aggregate
Principal Amount Offered:
|
$375,000,000
|
|
Purchase
Price to the Public:
|
6.30%
plus accrued interest, if any, from October 9, 2007.
|
|
Indenture:
|
Indenture
dated as of September 15, 1994, between the LNC and the Trustee,
as
supplemented by the First Supplemental Indenture, dated as of November
1,
2006
|
|
Trustee
|
The
Bank of New York
|
|
Registration
Statement File No.:
|
333-132416
|
|
Time
of Sale Prospectus
|
Prospectus
dated March 14, 2006 relating to the shelf securities as supplemented
by:
1.
the preliminary prospectus supplement dated October 3, 2007 relating
to
the Securities
2.
Final Term Sheet dated October 3, 2007
|
|
Interest
Rate:
|
6.30%
per annum
|
|
Interest
Payment Dates:
|
Semi-annually
in arrears on each April 9 and October
9, commencing April 9, 2008
|
|
Underwriting
Commissions:
|
$3,281,250
|
|
CUSIP:
|
534187
AW9
|
|
Closing
Date and Time:
|
October
9, 2007 10:00 a.m
|
|
Closing
Location:
|
Sullivan
& Cromwell LLP
125
Broad Street,
New
York, New York 10004
|
|
Address
for Notices to Underwriter:
|
Goldman,
Sachs & Co.
85
Broad Street
New
York, NY 10004
|
|
Ratings:
|
Moody’s: A3
(stable); S&P: A+ (stable); Fitch: A
(stable);
|
|
Minimum
Denomination:
|
$2,000
|
|
Sole
Book- Running Manager:
|
Goldman,
Sachs & Co.
|
SCHEDULE
II
Free
Writing Prospectus
1. Final
Term Sheet dated October 3, 2007, in the form set forth in Annex II
hereto.
SCHEDULE
III
Significant
Subsidiaries
1. The
Lincoln National Life Insurance Company
ANNEX
II
Filed
pursuant to Rule 433
Registration
number 333-132416
October
3, 2007
|
LINCOLN
NATIONAL CORPORATION
|
|
$375,000,000
6.30% SENIOR NOTES DUE OCTOBER 9, 2037
|
|
Issuer:
|
Lincoln
National Corporation (“LNC”)
|
|
Title
of Securities:
|
6.30%
Senior Notes due 2037 (the “Fixed Rate Notes”)
|
|
Note
Type:
|
Senior
unsecured
|
|
Format:
|
SEC
Registered
|
|
Trade
Date:
|
October
3, 2007
|
|
Settlement
Date (T+3):
|
October
9, 2007
|
|
Maturity
Date:
|
October
9, 2037
|
|
Aggregate
Principal Amount Offered:
|
$375,000,000
|
|
Price
to Public (Issue Price):
|
99.479%
from October 9, 2007
|
|
Price
to LNC:
|
98.604%
|
|
Benchmark
Treasury:
|
4.750%
due February
2037
|
|
Benchmark
Treasury Yield:
|
4.809%
|
|
Spread
to Benchmark:
|
Treasury
Rate plus 153 basis points
|
|
Interest
Rate:
|
6.30% per
annum
|
|
Interest
Payment Dates:
|
Semi-annually
in arrears on each April 9 and October 9, commencing April 9, 2008
to
registered holders at the close of business on the immediately
preceding
March 25 or September 25, as applicable
|
|
Optional
Redemption:
|
Make-whole
call at any time at the greater of 100% and discounted present
value at
Treasury rate plus 25 basis points
|
|
|
|
|
CUSIP
/ ISIN:
|
534187
AW9 / US534187AW96
|
|
Ratings*:
|
Moody’s: A3
(stable); S&P: A+ (stable); Fitch: A
(stable)
|
|
Minimum
Denomination:
|
$2,000
and integral multiples of $1,000
|
|
Sole
Book-Running Manager:
|
Goldman,
Sachs & Co.
|
*An
explanation of the significance of ratings may be obtained from the rating
agencies. Generally, rating agencies base their ratings on such material
and
information, and such of their own investigations, studies and assumptions,
as
they deem appropriate. The ratings of the Fixed Rate Notes should be evaluated
independently from similar ratings of other securities. A credit rating of
a
security is not a recommendation to buy, sell or hold securities and may
be
subject to review, revision, suspension, reduction or withdrawal at any time
by
the assigning rating agency.
The
issuer has filed a registration statement (including a prospectus) with the
SEC
for the offering to which this communication relates. Before you invest,
you
should read the prospectus in that registration statement and other documents
the issuer has filed with the SEC for more complete information about the
issuer
and this offering. You may get these documents for free by visiting
EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer,
the underwriter or any dealer participating in the offering will arrange
to send
you the prospectus if you request it by calling Goldman, Sachs &
Co. toll-free at 866-471-2526.
Any
disclaimers or other notices that may appear below are not applicable to
this
communication and should be disregarded. Such disclaimers or other
notices were automatically generated as a result of this communication being
sent via Bloomberg or another email system
Exhibit
4.1
|
LINCOLN
NATIONAL CORPORATION
|
|
6.30%
Senior Note due 2037
|
|
|
|
|
|
|
|
|
|
[Registered]
|
|
CUSIP
534187AW9
|
|
|
|
ISIN
US534187AW96
|
|
No.
|
|
U.S.
$
|
|
|
THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY
OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR
IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY
IN
WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER
THAN
SUCH DEPOSITORY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
|
|
|
|
|
|
|
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UNLESS
THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY (AS DEFINED
BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
|
|
Lincoln
National Corporation, a corporation organized and existing under the laws of
the
State of Indiana (hereinafter called the “Company”, which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay
to , or registered
assigns, the principal sum
of ($ )
on October 9, 2037 and to pay interest thereon from October 9, 2007 or from
the
most recent interest payment date to which interest has been paid or duly
provided
for,
semi-annually in arrears on April 9 and October 9, in each year, commencing
on
April 9, 2008 (each, an “Interest Payment Date”), at the rate of 6.30% per
annum. The period beginning on October 9, 2007 and ending on but
excluding the first Interest Payment Date and each successive period beginning
on and including an Interest Payment Date and ending on but excluding the next
succeeding Interest Payment Date is herein called an “Interest
Period”. If any Interest Payment Date falls on a day which is not a
Business Day, such Interest Payment Date shall be postponed to the next
succeeding Business Day. If April 9 or October 9 of any year is not a Business
Day (with the consequence that the related interest payment shall be made on
the
next succeeding Business Day, which shall be the relevant Interest Payment
Date
as set forth above), such payment shall be made on such Interest Payment Date
in
the amount that would otherwise have been due on April 9 or October 9 and no
interest on such payment shall accrue for the period from and after April 9
or
October 9 to such postponed Interest Payment Date, and the next succeeding
Interest Period shall begin on the April 9 or October 9 on which such payment
originally would have been made. If October 9, 2037 shall not be a Business
Day,
payment of the principal and interest due on that date need not be made on
that
day but may be made on the next day that is a Business Day with the same force
and effect as if made on October 9, 2037, provided that no interest shall accrue
for the period from and after October 9, 2037. The interest 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 Note is
registered at the close of business on March 25 or September 25 (whether or
not
a Business Day) immediately preceding the Interest Payment Date, as applicable
(each respectively a “Record Date”), subject to certain exceptions as provided
in the Indenture. Payment of the principal of, and interest on, this
Note will be made at the designated office or agency of the Company maintained
for such purpose in The City of New York, New York in such coin or currency
of
the United States of America as at the time of payment is legal tender for
payment of public and private debt or, at the option of the Company, interest
so
payable may be paid by check to the order of said Holder mailed to his address
appearing on the Security Register. Any interest not so punctually
paid or duly provided for shall be payable as provided in the
Note. Interest on this Note will be computed on the basis of a
360-day year of twelve 30-day months.
Reference
is hereby made to the further provisions of this Note set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect
as
if set forth at this place.
Unless
the certificate of authentication hereon has been executed by the Trustee by
manual signature, this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
IN
WITNESS WHEREOF, Lincoln National Corporation has caused this instrument to
be
duly executed under its corporate seal.
|
|
LINCOLN
NATIONAL CORPORATION
|
|
|
By: ______________________________
|
|
|
|
Name:
|
|
|
|
Title:
|
|
|
|
|
|
By: ______________________________
|
|
|
|
Name:
|
|
|
|
Title:
|
|
|
|
|
|
Attest: _________________________
|
|
|
Name:
Title:
|
|
|
|
|
|
|
Dated:
|
|
|
Dated:
Trustee’s
Certificate of Authentication
This
is
one of the Securities of the series designated herein and referred to in the
within-mentioned Indenture.
|
|
THE
BANK OF NEW YORK, as Trustee
|
|
|
By:
______________________________
|
[Reverse
of Note]
LINCOLN
NATIONAL CORPORATION
6.30%
Senior Note due 2037
This
Note
is one of a duly authorized issue of Securities of the Company of a series
hereinafter specified, all issued and to be issued under an Indenture dated
as
of September 15, 1994, as supplemented by the First Supplemental Indenture
dated
as of November 1, 2006 (herein collectively called the “Indenture”), between the
Company and The Bank of New York, as Trustee (hereinafter the “Trustee”, which
term includes any successor Trustee under the Indenture), to which Indenture
and
all indentures supplemental thereto reference is hereby made for a statement
of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holder of the Securities and the terms
upon
which the Securities are, and are to be, authenticated and
delivered. The Securities may be issued in one or more series, the
terms of which different series may vary as provided in the
Indenture. This Note is one of a series of the Securities of the
Company designated as its 6.30% Senior Note due 2037 (herein called the
“Notes”), limited in aggregate principal amount to
$ ,
except as otherwise provided in the Indenture. The Notes of this
series are issuable in registered form only in denominations of $2,000 and
integral multiples of $1,000.
All
terms
used in this Note that are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
The
Notes
are redeemable, in whole or in part, at the option of the Company, at any time
or from time to time, upon mailed notice to the registered address of each
holder of the Notes at least 30 days but not more than 60 days prior to the
redemption. The redemption price will be the greater of (i) 100% of the
principal amount of the Notes to be redeemed and (ii) the make-whole amount,
plus in each case accrued and unpaid interest to the date of redemption.
“Make-whole amount” means the sum of the present values of the remaining
scheduled payments on the Notes, discounted to the date of redemption on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day months),
at a rate equal to the sum of the applicable treasury rate plus 25 basis
points.
“Comparable
treasury issue” means the U.S. Treasury security selected by a reference
treasury dealer as having an actual or interpolated maturity comparable to
the
remaining term of the Notes called for redemption, that would be utilized,
at
the time of selection and in accordance with customary financial practice,
in
pricing new issues of corporate debt securities with a term comparable to such
period.
“Comparable
treasury price” means, with respect to a redemption date (1) the average of five
reference treasury dealer quotations for such redemption date, after excluding
the highest and lowest reference treasury dealer quotations, or (2) if the
quotation agent obtains fewer than five such reference treasury dealer
quotations, the average of all such quotations.
“Quotation
agent” means the entity appointed by the Company to determine the make-whole
amount.
“Reference
treasury dealer” means (1) Goldman, Sachs & Co. and (2) any additional
primary U.S. government securities dealers in New York City (each, a “primary
treasury dealer”) selected by the Company and their successors, provided,
however, that if any of them ceases to be a primary treasury dealer the Company
will substitute another primary treasury dealer.
“Reference
treasury dealer quotations” means, with respect to each reference treasury
dealer and any redemption date, the average, as determined by the quotation
agent, 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
quotation agent at 5:00 p.m., New York City time, on the third business day
preceding such redemption date.
“Remaining
scheduled payments” means the remaining scheduled payments of principal and
interest on the Notes called for redemption that would be due after the related
redemption date but for that redemption. If that redemption date is not an
interest payment date with respect to the Notes called for redemption, the
amount of the next succeeding scheduled interest payment on such Notes will
be
reduced by the amount of interest accrued to such redemption date.
“Treasury
rate” means, with respect to any redemption date, the rate per annum equal to
the semi-annual equivalent yield to maturity (computed as of the third business
day immediately preceding that redemption date) of the comparable treasury
issue, assuming a price for the comparable treasury issue (expressed as a
percentage of its principal amount) equal to the comparable treasury price
for
that redemption date.
The
Company will prepare and mail a notice of redemption to each Holder of Notes
to
be redeemed by first-class mail at least 30 and not more than 60 days prior
to
the date fixed for redemption. On and after a redemption date, interest will
cease to accrue on the Notes called for redemption (unless the Company defaults
in the payment of the redemption price and accrued interest). On or before
a
redemption date, the Company will deposit with a paying agent (or the Trustee)
money sufficient to pay the redemption price of and accrued interest on the
Notes to be redeemed on that date. If less than all of the Notes are to be
redeemed, the Notes to be redeemed shall be selected by the Trustee pro rata
or
by lot or by a method the Trustee deems to be fair and appropriate.
The
Notes
are not entitled to any sinking fund. If an Event of Default shall
occur with respect to the Notes, the principal of the Notes may be declared
due
and payable in the manner and with the effect provided in the
Indenture.
The
Indenture contains provisions for defeasance at any time of the Notes, upon
which the Company, at its option, shall be deemed to have been Discharged from
its obligations with respect to the Notes or shall cease to be under any
obligation to comply with certain restrictive covenants of the
Indenture.
Subject
to certain exceptions, the Indenture or the Notes may be amended or supplemented
with the consent of the Holders of at least a majority in principal amount
of
the Outstanding Securities affected by such amendment or supplement voting
as
one class. Without the consent of any Holder, the Company and the
Trustee may amend or supplement the Indenture or the Notes to, among other
things, cure any ambiguity, defect or inconsistency. Subject to
certain exceptions, any past default or Event of Default may be waived by the
Holders of at least a majority in principal amount of the Outstanding Securities
of any series affected on behalf of the Holders of the Securities of that series
or the Holders of at least a majority in principal amount of all the Outstanding
Securities voting as one class. After the amendment or supplement is
effective, any such consent or waiver by the Holder of this Note shall be
conclusive and binding upon such Holder and upon all future Holders of this
Note
and of any Note issued upon the transfer hereof or in exchange hereunder or
in
lieu hereof whether or not notation of such consent or waiver is made upon
this
Note or upon any Note issued upon the transfer hereof or in exchange herefor
or
in lieu hereof.
No
reference herein to the Indenture and no provision of this Note or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of, and interest on, this Note at the
times, place, and rate, and in the coin or currency, herein
prescribed.
As
provided in the Indenture and subject to certain limitations therein set forth,
this Note is transferable on the Security Register of the Company, upon
surrender of this Note for transfer at the office or agency of the Company
in
The City of New York, New York, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Registrar,
duly executed by the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Notes, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee
or
transferees.
As
provided in the Indenture and subject to certain limitations therein set forth,
this Note is exchangeable for a like aggregate principal amount of Notes of
different authorized denominations as requested by the Holder surrendering
the
same.
No
service charge will be made for any such transfer or exchange, but the Company
may require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
The
Company, the Trustee and any agent of the Company or the Trustee may treat
the
person in whose name this Note is registered as the owner hereof for the purpose
of receiving payment as herein provided and for all other purposes whether
or
not this Note be overdue, and neither the Company, the Trustee nor any agent
shall be affected by notice to the contrary.
No
recourse shall be had for the payment of the principal of, or the interest
on,
this Note or for any claim based hereon or otherwise in any manner in respect
hereof, or in respect of the Indenture, against any incorporator, shareholder,
officer or director, as such, past, present or future, of the Company or of
any
predecessor or, except as provided in the Indenture, successor corporation,
whether by virtue of any constitutional provision or statute or rule of law,
or
by the enforcement of any assessment or penalty or in any other manner, all
such
liability being expressly waived and released by the acceptance hereof and
as
part of the consideration for the issue hereof.
