EXHIBIT 1.1
UnumProvident Corporation
__________________
Underwriting Agreement
__________________
March 2, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Securities LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
c/o Banc of America Securities LLC
As Representatives of the Several Underwriters
named in Schedule I to Annex I hereto,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Dear Ladies and Gentlemen:
From time to time UnumProvident Corporation, a Delaware corporation (the
"Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its debt securities (the "Securities") specified
in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Firm Securities" and together with any Optional Securities, as
defined below, the "Designated Securities"), less the principal amount of
Designated Securities covered by Delayed Delivery Contracts, if any, as provided
in Section 3 hereof and as may be specified in Schedule II to such Pricing
Agreement (with respect to such Pricing Agreement, any Designated Securities to
be covered by Delayed Delivery Contracts being herein sometimes referred to as
"Contract Securities" and the Designated Securities to be purchased by the
Underwriters (after giving effect to the deduction, if any, for Contract
Securities) being herein sometimes referred to as "Underwriters' Securities").
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from time to time
to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to Underwriters who act without any firm being designated
as their representative. This Underwriting Agreement shall not be construed as
an obligation of the Company to sell any of the Securities or as an obligation
of any of the Underwriters to purchase the Securities. The obligation of the
Company to issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced by the Pricing
Agreement with respect to the Designated Securities specified therein. Each
Pricing Agreement with respect to Designated Securities shall be substantially
in the form attached hereto as Annex I and shall specify the names of the
Underwriters of such Designated Securities, the names of the Representatives, if
any, of such Underwriters, the principal amount of Firm Securities and the
principal amount of Optional Securities, if any, to be purchased by each
Underwriter and the commission, if any, payable to the Underwriter with respect
thereto, whether any of such Designated Securities shall be covered by Delayed
Delivery Contracts (as defined in Section 3 hereof), the purchase price to the
Underwriters of such Designated Securities, the nature of the funds to be
delivered by the Underwriters, the initial public offering price or the manner
of determining such price, if any, including, interest rates, if any, maturity,
whether such Securities
will be convertible at the option of the holder thereof, any conversion rates or
price(s), whether warrants shall be attached to such Debt Securities, any
redemption provisions and any sinking fund requirements. A Pricing Agreement
shall be in the form of an executed writing (which may be in counterparts, and
may be evidenced by an exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of communications
transmitted). The obligations of the Underwriters under this Agreement and each
Pricing Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (No. 333-43808), in respect
of the Securities has been filed with the Securities and Exchange
Commission (the "Commission"); such registration statement and any post-
effective amendment thereto, in the form heretofore delivered or to be
delivered to the Representatives for each of the other Underwriters and,
excluding exhibits to such registration statement, but including all
documents incorporated by reference in the prospectus contained therein,
has been declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering (a
"Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b) under
the Securities Act of 1933, as amended (the "Act"), which became effective
upon filing, no other document with respect to such registration statement
or document incorporated by reference therein has heretofore been filed or
transmitted for filing with the Commission; and no stop order suspending
the effectiveness of such registration statement, any post-effective
amendment thereto, or the Rule 462(b) Registration Statement, if any, has
been issued and no proceeding for that purpose has been initiated or
threatened by the Commission. Any preliminary prospectus included in such
registration statement or filed with the Commission pursuant to Rule 424(a)
or 424(b) of the rules and regulations of the Commission under the Act, is
hereinafter called a "Preliminary Prospectus;" the various parts of such
registration statement and the Rule 462(b) Registration Statement, if any,
including all exhibits thereto and the documents incorporated by reference
in the prospectus contained in such registration statement and the Rule
462(b) Registration Statement, if any, at the time such part of such
registration statement or such part of the Rule 462(b) Registration
Statement, if any, became or hereafter becomes effective but excluding Form
T-1, as amended at the time such part of the registration statement or such
part of the Rule 462(b) Registration Statement, if any, became effective
and at the time each incorporated document was filed with the Commission is
hereinafter called the "Registration Statement;" the prospectus relating to
the Securities, in the form in which it has most recently been filed, or
transmitted for filing, with the Commission on or prior to the date of this
Agreement, including any prospectus supplement thereto, is hereinafter
called the "Prospectus;" any reference herein to any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form under the
Act, as of the date of such Preliminary Prospectus or Prospectus, as the
case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus
or Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and incorporated by reference in
such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment to the Registration Statement shall be deemed to
refer to and include any annual report of the Company filed pursuant to
Section 13(a) or 15(d) of the Exchange Act after the effective date of the
Registration Statement that is incorporated by reference in the
Registration Statement; and any reference to the Prospectus as amended or
supplemented shall be deemed to refer to the Prospectus as amended or
supplemented in relation to the applicable Designated Securities in the
form in which it is filed with the Commission pursuant to Rule 424(b) under
the Act in accordance with Section 5(a) hereof, including any documents
incorporated by reference therein as of the date of such filing;
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
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Commission thereunder, and none of such documents 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; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto,
when such documents become effective or are filed with the Commission, as
the case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an 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; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the rules and regulations of the Commission thereunder
and do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an 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 (i) in the case of the Registration Statement, not misleading and
(ii) in the case of the Prospectus, in light of the circumstances under
which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter of Designated Securities through
the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities;
(d) Neither the Company nor any of its subsidiaries listed on
Appendix A hereto, which Appendix contains an accurate and complete list of
those subsidiaries of the Company that constitute "significant
subsidiaries" of the Company within the meaning of Regulation S-X under the
Securities Act as of the date of this Agreement, (each a "Significant
Subsidiary," and collectively, the "Significant Subsidiaries,") has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the 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, since the respective dates as of
which information is given or incorporated by reference in the Registration
Statement and the Prospectus, there has not been any material change in the
capital stock or long-term debt of the Company or any of its Significant
Subsidiaries or any material adverse change, or any development that could
be reasonably expected to cause 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 considered as a whole, otherwise than as set forth or
contemplated in the Prospectus;
(e) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the 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, except for any jurisdiction where failure to so
qualify will not have a material adverse effect or be reasonably expected
to cause a prospective material adverse effect on the Company and its
subsidiaries taken as a whole; and each Significant Subsidiary of the
Company has
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been duly organized and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation;
(f) The Company has an authorized capitalization as set forth in 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
nonassessable;
(g) The Firm Securities and any Optional Securities have been duly
and validly authorized, and, when the Firm Securities are issued and
delivered pursuant to this Agreement, and the Pricing Agreement with
respect to such Designated Securities and, in the case of any Contract
Securities, pursuant to Delayed Delivery Contracts (as defined in Section 3
hereof) with respect to such Contract Securities, and in the case of any
Optional Securities pursuant to Over-allotment Options (as defined in
Section 3 hereof) with respect to such Securities, such Designated
Securities will have been duly executed, authenticated, issued and
delivered and will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their 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 and entitled to the benefits provided by the
Indenture, which will be substantially in the form filed as an exhibit to
the Registration Statement; the Indenture has been duly authorized and duly
qualified under the Trust Indenture Act and, at the Time of Delivery for
such Designated Securities (as defined in Section 4 hereof), the Indenture
will constitute 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; and the
indenture conforms, and the Designated Securities will conform in all
material respects, to the descriptions thereof contained in the Prospectus
as amended or supplemented with respect to such Designated Securities;
(h) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture, each
of the Delayed Delivery Contracts, this Agreement and any Pricing Agreement
and each Over-allotment Option, if any, 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 indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company is a party
or by which the Company is bound or to which any of the property or assets
of the Company is subject, except for such conflicts, breaches and
violations, that, individually or in the aggregate, do not have a material
adverse effect and are not reasonably expected to have a prospective
material adverse effect on the Company and its subsidiaries considered as a
whole, nor will such action result in any violation of the provisions of
the Certificate of Incorporation or By-Laws of the Company or any statute
or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its properties; and no
consent, approval, authorization, order, registration or qualification of
or with any such court or governmental agency or body is required for the
issue and sale of the Securities or the consummation by the Company of the
transactions contemplated by this Agreement or any Pricing Agreement or any
Over-allotment Option, or the Indenture or any Delayed Delivery Contract
except such as have been, or will have been prior to the Time of Delivery,
obtained under the Act and 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;
(i) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
Significant Subsidiaries is a party or of which any property of the Company
or any of its Significant Subsidiaries is the subject which, if determined
adversely to the Company or any of its Significant Subsidiaries, would
individually or in the aggregate have a material adverse effect on the
consolidated financial position, stockholders' equity or results of
operations of the
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Company and its subsidiaries considered 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;
(j) Ernst & Young LLP, who have audited certain financial statements
of the Company and its subsidiaries, and PricewaterhouseCoopers LLP, who
have audited certain financial statements of UNUM Corporation and its
subsidiaries, are each independent public accountants as required by the
Act and the rules and regulations of the Commission thereunder;
(k) The Company and its subsidiaries which are engaged in the
insurance business are, in all material respects, in compliance with, and
conduct, in all material respects, their respective businesses in
conformity with, all applicable insurance laws and regulations; and no
order preventing or suspending the use of the Prospectus or any Preliminary
Prospectus has been issued or threatened by any insurance regulatory
authority having jurisdiction over the Company and such subsidiaries;
(l) This Agreement has been duly authorized, executed and delivered
by the Company and the Pricing Agreement when executed will have been duly
authorized, executed and delivered by the Company; and
(m) In the event any of the Securities are purchased pursuant to
Delayed Delivery Contracts, each of such Delayed Delivery Contracts has
been duly authorized by the Company and, when executed and delivered by the
Company and the purchaser named therein, will constitute a valid and
legally binding agreement of the Company 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; and any
Delayed Delivery Contracts conform to the description thereof in the
Prospectus.
3. Upon the execution of the Pricing Agreement applicable to any Designated
Securities and authorization by the Representatives of the release of such Firm
Securities, the several Underwriters propose to offer such Firm Securities for
sale upon the terms and conditions set forth in the Prospectus as amended or
supplemented.
The Company may specify in the Pricing Agreement applicable to any
Designated Securities that the Company thereby grants to the Underwriters the
right (an "Over-allotment Option") to purchase at their election up to the
aggregate principal amount of Optional Securities set forth in such Pricing
Agreement, at the terms set forth in the paragraph above, for the sole purpose
of covering over-allotments in the sale of the Firm Securities. Any such
election to purchase Optional Securities may be exercised only by written notice
from the Representatives to the Company, given within a period specified in the
Pricing Agreement, setting forth the aggregate principal amount of Optional
Securities to be purchased and the date on which such Optional Securities are to
be delivered, as determined by the Representatives but in no event earlier than
the First Time of Delivery (as defined in Section 4 hereof) or, unless the
Representatives and the Company otherwise agree in writing, earlier than or
later than the respective number of business days after the date of such notice
set forth in such Pricing Agreement.
The aggregate principal amount of Optional Securities to be added to the
number of Firm Securities to be purchased by each Underwriter as set forth in
Schedule I to the Pricing Agreement applicable to such Designated Securities
shall be, in each case, the aggregate principal amount of Optional Securities
which the Company has been advised by the Representatives have been attributed
to such Underwriter, provided that, if the Company has not been so advised, the
aggregate principal amount of Optional Securities to be so added shall be, in
each case, that proportion of Optional Securities which the aggregate principal
amount of Firm Securities to be purchased by such Underwriter under such Pricing
Agreement bears to the aggregate principal amount of Firm Securities. The total
aggregate principal amount of Designated Securities to be purchased by all the
Underwriters pursuant to such Pricing Agreement shall be the aggregate principal
amount
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of Firm Securities set forth in Schedule I to such Pricing Agreement plus the
aggregate number of the Optional Securities which the Underwriters elect to
purchase.
The Company may specify in Schedule II to the Pricing Agreement applicable
to any Designated Securities that the Underwriters are authorized to solicit
offers to purchase Designated Securities from the Company pursuant to delayed
delivery contracts (herein called "Delayed Delivery Contracts"), substantially
in the form of Annex III attached hereto but with such changes therein as the
Representatives and the Company may authorize or approve. If so specified, the
Underwriters will endeavor to make such arrangements, and as compensation
therefor the Company will pay to the Representatives, for the accounts of the
Underwriters, at the Time of Delivery (as defined in Section 4 hereof), such
commission, if any, as may be set forth in such Pricing Agreement. Delayed
Delivery Contracts, if any, are to be with investors of the types described in
the Prospectus and subject to other conditions therein set forth. The
Underwriters will not have any responsibility with respect to the validity or
performance of any Delayed Delivery Contracts.
The aggregate principal amount of Contract Securities to be deducted from
the aggregate principal amount of Designated Securities to be purchased by each
Underwriter as set forth in Schedule I to the Pricing Agreement applicable to
such Designated Securities shall be, in each case, the aggregate principal
amount of Contract Securities which the Company has been advised by the
Representatives have been attributed to such Underwriter, provided that, if the
Company has not been so advised, the amount of Contract Securities to be so
deducted shall be, in each case, that proportion of Contract Securities which
the aggregate principal amount of Designated Securities to be purchased by such
Underwriter under such Pricing Agreement bears to the aggregate principal amount
of the Designated Securities (rounded as the Representatives may determine). The
aggregate principal amount of Underwriters' Securities to be purchased by all
the Underwriters pursuant to such Pricing Agreement shall be the aggregate
principal amount of Designated Securities set forth in Schedule I to such
Pricing Agreement less the principal amount of the Contract Securities. The
Company will deliver to the Representatives not later than 3:30 p.m., New York
City time, on the third business day preceding the Time of Delivery specified in
the applicable Pricing Agreement (or such other time and date as the
Representatives and the Company may agree upon in writing) a written notice
setting forth the aggregate principal amount of Contract Securities.
4. Delivery of the Firm Securities and the Optional Securities, if any, to
be purchased by each Underwriter pursuant to the Pricing Agreement relating
thereto, shall be made through the facilities of the Depository Trust Company
unless the Representatives shall otherwise instruct. Any Designated Securities
issued in definitive form shall be made in such authorized denominations and
registered in such names as the Representatives may request upon at least forty-
eight hours' prior notice to the Company. Regardless of the method of delivery,
any Designated Securities to be purchased by the Underwriters pursuant to the
Pricing Agreement relating thereto shall be delivered by or on behalf of the
Company to the Representatives for the account of such Underwriter, against
payment by such Underwriter or on its behalf of the purchase price therefor by
the method specified in such Pricing Agreement, (i) with respect to the Firm
Securities, all at the place and time and date specified in such Pricing
Agreement or at such other place and time and date as the Representatives and
the Company may agree upon in writing, such time and date being herein called
the "First Time of Delivery" and (ii) with respect to the Optional Securities,
if any, on the time and date specified by the Representatives in the written
notice given by the Representatives of the Underwriters' election to purchase
such Optional Securities, or at such other time and date as the Representatives
and the Company may agree upon in writing, such time and date, if not the First
Time of Delivery, herein called the "Second Time of Delivery." Each such time
and date for delivery is herein called a "Time of Delivery." "New York Business
Day" shall mean each Monday, Tuesday, Wednesday, Thursday, and Friday which is
not a day on which banking institutions in New York are generally authorized or
obligated by law or executive order to close.
Concurrently with the delivery of and payment for the Underwriters'
Securities, the Company will deliver to the Representatives for the accounts of
the Underwriters funds payable to the order of the party designated,
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and in the method specified, in the Pricing Agreement relating to such
Securities in the amount of any compensation payable by the Company to the
Underwriters in respect of any Delayed Delivery Contracts as provided in Section
3 hereof and the Pricing Agreement relating to such Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended and supplemented in relation
to the applicable Designated Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Securities or, if applicable, such
earlier time as may be required by Rule 424(b); to make no further
amendment or any supplement to the Registration Statement or Prospectus as
amended or supplemented after the date of the Pricing Agreement relating to
such Securities and prior to the Time of Delivery for such Securities which
amendment or supplement shall be disapproved by the Representatives for
such Securities promptly after reasonable notice thereof; to advise the
Representatives promptly of any such amendment or supplement after such
Time of Delivery and furnish the Representatives with copies thereof; 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 such Securities, and during such same period to advise the
Representatives, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has
been filed with the Commission, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
prospectus relating to the Securities, of the suspension of the
qualification of such Securities for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such purpose, or
of any request by the Commission for the amending or supplementing of the
Registration Statement or 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 any prospectus relating to the
Securities 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 such Securities for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of such 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) Prior to 10:00 A.M., New York City time, or as soon as
practicable thereafter, on the New York Business Day next succeeding the
date of this Agreement, and thereafter, to furnish the Underwriters with
copies of the 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 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 the light of the circumstances under which they were made when
such Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the 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 file such document and to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many copies
7
as the Representatives may from time to time reasonably request of an
amended Prospectus or a supplement to the 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 (as defined in Rule 158(c)),
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 of the Commission thereunder (including, at the option of the
Company, Rule 158);
(e) During the period beginning from the date hereof and continuing
to and including the earlier of (i) the termination of trading restrictions
for such Designated Securities and (ii) the Time of Delivery for such
Designated Securities, not to offer, sell, contract to sell or otherwise
dispose of any securities of the Company (other than pursuant to employee
stock option plans existing, or on the conversion or exchange of
convertible or exchangeable securities outstanding on the date of the
Pricing Agreement) which are substantially similar to the Designated
Securities and which mature more than one year after the related Time of
Delivery, without your prior written consent; and
(f) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this
Agreement, and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or
give irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the Act.
6. 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 in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, any Pricing Agreement, any Indenture, any
Warrant Agreement, any Delayed Delivery Contracts, and Blue Sky and 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 laws as provided in Section 5(b) hereof, including the 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) any fees charged by securities rating services for rating the Securities;
(v) any filing fees incident to any required review by the National Association
of Securities Dealers, Inc. of the terms of the sale of the Securities; (vi) the
cost of preparing the Securities; (vii) the fees and expenses of any Trustee,
any Warrant Agent, any Registrar, any Transfer Agent, Dividend Disbursing Agent,
or any Calculation Agent and any agent of any Trustee, Warrant Agent, Registrar,
Transfer Agent, Dividend Disbursing Agent, or Calculation Agent and the fees and
disbursements of counsel for any such persons in connection with any Indenture,
any Warrant Agent Agreement, any Calculation Agent Agreement and the Securities;
and (viii) all other costs and expenses incident to the performance of the
Company's obligations hereunder and under any Over-allotment Options and under
any Delayed Delivery Contracts which are not otherwise specifically provided for
in this Section. It is understood, however, that, except as provided in this
Section, Section 8 and Section 11 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. The obligations of the Underwriters of any Designated Securities under
the Pricing Agreement relating to such Designated Securities shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in
8
the Pricing Agreement relating to such Designated Securities are, at and as of
each Time of Delivery for such Designated Securities, true and correct, the
condition that the Company shall have performed in all material respects all of
its obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated 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; if the Company has elected to rely upon Rule
462(b), the Rule 462(b) Registration Statement shall have become effective
by 10:00 P.M., Washington, D.C. time, on the date of this Agreement; 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) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, shall have
furnished to the Representatives such opinion or opinions, dated each Time
of Delivery for such Designated Securities, with respect to the
incorporation of the Company, the validity of the Indenture, the Designated
Securities, the Delayed Delivery Contracts, if any, the Registration
Statement, the Prospectus as amended or supplemented and other related
matters as the Representatives may reasonably request, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(c) F. ▇▇▇▇ ▇▇▇▇▇▇▇▇, General Counsel of the Company, shall have
furnished to the Representatives his written opinion, dated each Time of
Delivery for such Designated Securities, in form and substance satisfactory
to the Representatives, 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
jurisdiction of its incorporation, with corporate power and authority
to own its properties and conduct its business as described in the
Prospectus as amended or supplemented;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus as amended or supplemented 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 nonassessable;
(iii) The Company is qualified to do business, and is in good
standing, as a foreign corporation under the laws of each jurisdiction
in which the business conducted by it requires such qualification or,
if not so qualified and in good standing in any such jurisdiction,
such failure to be so qualified and in good standing, as of the date
of the opinion will not have a material adverse effect and would not
be reasonably expected to cause a prospective material adverse effect
on the Company and its subsidiaries taken as a whole;
(iv) Each Significant Subsidiary of the Company has been duly
organized, and is subsisting and in good standing as a corporation
under the laws of its jurisdiction of incorporation, and all of the
issued shares of capital stock of each such subsidiary have been duly
and validly authorized and issued, are fully paid and nonassessable,
and, to the best knowledge of such counsel, are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims;
(v) To the best of such counsel's knowledge and other than as
set forth in the 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
9
the subject which, if determined adversely to the Company or any of
its subsidiaries, would individually or in the aggregate have a
material adverse effect on the consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries; and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others;
(vi) This Agreement and the Pricing Agreement with respect to
the Designated Securities have been duly authorized, executed and
delivered by the Company;
(vii) The Designated Securities have been duly authorized, by
requisite corporate action on the part of the Company, and the
Designated Securities, when executed and authenticated in accordance
with the terms of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of the Underwriting
Agreement, will be valid and binding obligations of the Company
entitled to the benefit of the Indenture and enforceable against the
Company in accordance with their terms, except to the extent that the
enforcement thereof may be limited by (1) bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium or other similar laws
now or hereafter in effect relating to or affecting creditors' rights
generally, (2) general principles of equity (regardless of whether
enforcement is considered in a proceeding at law or equity), (3)
requirements that a claim with respect to any Debt Securities
denominated other than in United States dollars (or a judgment
denominated other than in United States dollars in respect of such
claim) be converted into United States dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law, and (4)
governmental authority to limit, delay or prohibit the making of
payments outside the United States or in foreign currencies or
composite currencies or currency units; and the Designated Securities
conform in all material respects to the description thereof contained
in the Registration Statement and Prospectus as amended or
supplemented with respect to such Designated Securities;
(viii) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding
agreement, enforceable against the Company in accordance with its
terms, except to the extent that the enforcement thereof may be
limited by (1) bankruptcy, insolvency, reorganization, fraudulent
transfer, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally, (2) general principles of
equity (regardless of whether enforcement is considered in a
proceeding at law or equity), (3) requirements that a claim with
respect to any Debt Securities denominated other than in United States
dollars (or a judgment denominated other than in United States dollars
in respect of such claim) be converted into United States dollars at a
rate of exchange prevailing on a date determined pursuant to
applicable law, and (4) governmental authority to limit, delay or
prohibit the making of payments outside the United States or in
foreign currencies or composite currencies or currency units; and the
Indenture has been duly qualified under the Trust Indenture Act;
The Contract Securities when authenticated, executed, issued and
delivered pursuant to the Indenture and the Delayed Delivery
Contracts and paid for in accordance with the Delayed Delivery
Contracts will constitute valid and binding obligations of the
Company entitled to the benefits provided by the Indenture and
enforceable in accordance with their terms, except to the extent that
enforcement thereof may be limited by (1) bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium and other similar
laws now or hereafter in effect relating to or affecting creditors'
rights generally, (2) general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or in
equity), (3) requirements that a claim with respect to any Debt
Securities denominated other than in United States dollars (or a
judgment denominated other than in United States dollars in respect
of such claim) be converted into United States dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law,
and (4) governmental authority to limit, delay or prohibit the making
of payments outside the United States
10
or in foreign currencies or composite currencies or currency units; and
the Contract Securities and the Indenture conform in all material respects
to the descriptions thereof in the Registration Statement and Prospectus
as amended or supplemented relating to the Designated Securities;
(ix) The issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the Designated
Securities, the Indenture, the Warrant Agreement, each of the Delayed
Delivery Contracts, if any, any Over-allotment Options, this Agreement and
the Pricing Agreement with respect to the Designated Securities 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 indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument known to
such counsel to which the Company is a party or by which the Company is
bound or to which any of the property or assets of the Company is subject,
except for such conflicts, breaches and violations, that do not,
individually or in the aggregate, have a material adverse effect and are
not reasonably expected to have a prospective material adverse effect on
the Company and its subsidiaries considered as a whole, nor will such
actions result in any violation of the provisions of the Certificate of
Incorporation or By-Laws of the Company or any statute or any order, rule
or regulation known to such counsel of any court or governmental agency or
body having jurisdiction over the Company or any of its properties;
(x) 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 Designated Securities or the
consummation by the Company of the transactions contemplated by this
Agreement or such Pricing Agreement or the Indenture or any of such
Delayed Delivery Contracts or any Over-allotment Options, except such as
have been obtained under the Act and 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 Designated Securities by the
Underwriters;
(xi) The documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion), when
they became effective or were filed with the Commission, as the case may
be, complied 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 which 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 in order to make the statements therein, in the
light of the circumstances under which they were made when such documents
were so filed, not misleading;
(xii) The Registration Statement and the Prospectus as amended or
supplemented and any further amendments and supplements thereto made by
the Company prior to the Time of Delivery for the Designated Securities
(other than the financial statements and related schedules therein, as to
which such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act and the Trust Indenture
Act and the rules and regulations thereunder; and
(xiii) In the event any of the Designated Securities are to be
purchased pursuant to Delayed Delivery Contracts, each of such Delayed
Delivery Contracts has been duly authorized, executed
11
and delivered by the Company and, assuming such Delayed Delivery Contracts
have been duly authorized, executed and delivered by the purchaser named
therein, constitutes a valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except to
the extent that enforcement thereof may be limited by (1) bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally, (2) general principles of equity (regardless of whether
enforcement is considered in a proceeding at law or in equity), (3)
requirements that a claim with respect to any Debt Securities denominated
other than in United States dollars (or a judgment denominated other than
in United States dollars in respect of such claim) be converted into
United States dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law, and (4) governmental authority to
limit, delay or prohibit the making of payments outside the United States
or in foreign currencies or composite currencies or currency units; and
any Delayed Delivery Contracts conform in all material respects to the
description thereof in the Registration Statement and Prospectus as
amended or supplemented.
In addition, such counsel shall state that he has no reason 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 related schedules therein, as to which such
counsel need express no opinion) contained an untrue statement of a material
fact or omitted to state a material fact, in each case, solely with respect
to information of or about the Company, required to be stated therein or
necessary to make the statements therein not misleading or that, as of its
date, the 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 related schedules therein, as to which such
counsel need express no opinion) contained an untrue statement of a material
fact or omitted to state a material fact, in each case, solely with respect
to information of or about the Company, necessary to make the statements
therein, in light of the circumstances in which they were made, not
misleading or that, as of such Time of Delivery, either the Registration
Statement or the 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 related schedules therein,
as to which such counsel need express no opinion) contains an untrue
statement of a material fact or omits to state a material fact, in each case,
solely with respect to information of or about the Company, necessary to make
the statements therein, in light of the circumstances in which they were
made, not misleading; and he shall state that he does not know of any
amendment to the Registration Statement required to be filed or 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
Prospectus as amended or supplemented or required to be described in the
Registration Statement or the Prospectus as amended or supplemented which are
not filed or incorporated by reference or described as required.
In rendering such opinion, such counsel may rely as to matters involving
the application of laws of any jurisdiction other than the State of Georgia, the
State of Tennessee or the Federal laws of the United States, to the extent they
deem proper and specified in such opinion, upon the opinion of ▇▇▇▇▇▇ & Bird LLP
or other counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters.
(d) ▇▇▇▇▇▇ & Bird LLP, counsel for the Company, shall have furnished to
the Representatives their written opinion, dated each Time of Delivery for
such Designated Securities, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Designated Securities conform in all material respects to the
description thereof contained in the Registration Statement and the
Prospectus, each as amended or supplemented with respect to such
Designated Securities. The Indenture has been duly authorized, executed
and delivered by the Company and constitutes a legal, valid and binding
obligation of the Company
12
enforceable against the Company in accordance with its terms (subject to
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and other similar laws affecting creditors' rights generally from
time to time in effect and to general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good faith
and fair dealing, regardless of whether considered in a proceeding in
equity or at law); the issuance of the Designated Securities has been duly
authorized and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the
Underwriters pursuant to this Agreement and the applicable Pricing
Agreement, the Designated Securities will constitute legal, valid and
binding obligations of the Company entitled to the benefits of the
Indenture and enforceable against the Company in accordance with their
terms (subject to applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and other similar laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, regardless of
whether considered in a proceeding in equity or at law); and the Contract
Securities, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for in accordance
with Delayed Delivery Contracts, will constitute legal, valid and binding
obligations of the Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms (subject to
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and other similar laws affecting creditors' rights generally from
time to time in effect and to general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good faith
and fair dealing, regardless of whether considered in a proceeding in
equity or at law).
(ii) Assuming the due authorization, execution and delivery of any
Delayed Delivery Contract by the purchaser named therein, such Contract
will constitute a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms (subject to
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and other similar laws affecting creditors' rights generally from
time to time in effect and to general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good faith
and fair dealing, regardless of whether considered in a proceeding in
equity or at law).
In addition, such counsel shall state that they have no reason 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 related schedules therein, as to which such
counsel need express no opinion) contained an untrue statement of a material
fact or omitted to state a material fact, in each case, solely with respect
to information of or about the Company, required to be stated therein or
necessary to make the statements therein not misleading or that, as of its
date, the 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 related schedules therein, as to which such
counsel need express no opinion) contained an untrue statement of a material
fact or omitted to state a material fact, in each case, solely with respect
to information of or about the Company, necessary to make the statements
therein, in light of the circumstances in which they were made, not
misleading or that, as of such Time of Delivery, either the Registration
Statement or the 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 related schedules therein,
as to which such counsel need express no opinion) contains an untrue
statement of a material fact or omits to state a material fact, in each case,
solely with respect to information of or about the Company, necessary to make
the statements therein, in light of the circumstances in which they were
made, not misleading; and such counsel shall state that they do not know of
any amendment to the Registration Statement required to be filed or 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 Prospectus as amended or supplemented or required to be
described in the Registration Statement
13
or the Prospectus as amended or supplemented which are not filed or
incorporated by reference or described as required.
(e) On the date of the Pricing Agreement for such Designated Securities
and at each Time of Delivery for such Designated Securities, Ernst & Young
LLP and PricewaterhouseCoopers LLP shall have each furnished to the
Representatives a letter, dated the effective date of the Registration
Statement or the date of the most recent report filed with the Commission
containing financial statements and incorporated by reference in the
Registration Statement, if the date of such report is later than such
effective date, and a letter dated such Time of Delivery, respectively, to
the effect set forth in Annex II hereto, and with respect to such letter
dated such Time of Delivery, as to such other matters as the Representatives
may reasonably request and in form and substance satisfactory to the
Representatives;
(f) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus as amended or supplemented any
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 government action, order or decree, otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented, and (ii) since the
respective dates as of which information is given in the Prospectus as
amended or supplemented there shall not have been any material change in the
capital stock or long-term debt of the Company or any of its subsidiaries or
any change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position, stockholders'
equity or results of operations of the Company and its subsidiaries
considered as a whole, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented, the effect of which, in any such case
described in Clause (i) or (ii), is in the judgment of the Representatives so
material and adverse as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of the Designated Securities on the
terms and in the manner contemplated in the Prospectus as amended or
supplemented;
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities or preferred stock by any "nationally
recognized statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the
Company's debt securities or preferred stock;
(h) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following: (i)
a suspension or material limitation in trading in securities generally on the
New York Stock Exchange; (ii) a general moratorium on commercial banking
activities in New York declared by either Federal or New York state
authorities; or (iii) the outbreak or material escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war, if the effect of any such event specified in this
Clause (iii) in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Firm
Securities or the Optional Securities, or both, on the terms and in the
manner contemplated by the Prospectus as amended or supplemented; and
(i) The Company shall have furnished or caused to be furnished to the
Representatives at each Time of Delivery for the Designated Securities a
certificate or certificates of officers of the Company satisfactory to the
Representatives as to the accuracy of the representations and warranties of
the Company herein at and as of each Time of Delivery, as to the performance
by the Company of all of its obligations hereunder to be performed at or
prior to each Time of Delivery, as to the matters set forth
14
in subsections (a) and (f) of this Section and as to such other matters as
the Representatives may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter against
any losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment 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 (i) in the case of the
Registration Statement, not misleading and (ii) in the case of the Prospectus,
in the light of the circumstances under which they were made, not misleading,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that the
Company shall 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 an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
of Designated Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities; 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
Prospectus to the extent that any such loss, claim, damage or liability of such
Underwriter results from the fact such Underwriter sold 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 Prospectus (excluding documents incorporated by
reference) or of the Prospectus as then amended or supplemented (excluding
documents incorporated by reference) in any case where such delivery is required
by the Act if the Company has 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 Prospectus which was corrected in the Prospectus (or the Prospectus
as amended or supplemented).
(b) Each Underwriter will indemnify and hold harmless the Company against any
losses, claims, damages or liabilities to which the Company may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Securities, or any amendment 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 (i) in the case of the Registration Statement, not misleading and (ii)
in the case of any Prospectus, in the light of the circumstances under which
they were made, not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against
15
the indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters of the Designated Securities
on the other from the offering of the Designated Securities to which such loss,
claim, damage or liability (or action in respect thereof) relates. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters of the Designated
Securities on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and such Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from such offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by such Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or such Underwriters on the other and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the applicable Designated Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the Underwriters
of Designated Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to such
Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be in addition
to any liability which the Company may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any,
16
who controls any Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section 8 shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Company and to
each person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Firm Securities or Optional Securities which it has agreed to purchase under the
Pricing Agreement relating to such Firm Securities or Optional Securities, the
Representatives may in their discretion arrange for themselves or another party
or other parties to purchase such Underwriters' Securities on the terms
contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such Firm
Securities or Optional Securities, then the Company shall be entitled to a
further period of thirty-six hours within which to procure another party or
other parties satisfactory to the Representatives to purchase such Firm
Securities or Optional Securities on such terms. In the event that, within the
respective prescribed period, the Representatives notify the Company that they
have so arranged for the purchase of such Firm Securities or Optional
Securities, or the Company notifies the Representatives that it has so arranged
for the purchase of such Firm Securities or Optional Securities, the
Representatives or the Company shall have the right to postpone the Time of
Delivery for such Firm Securities or Optional Securities for a period of not
more than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Company agrees
to file promptly any amendments or supplements to the Registration Statement or
the Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such Designated
Securities.
(b) If, after giving effect to any arrangements for the purchase of the Firm
Securities or Optional Securities, as the case may be, of a defaulting
Underwriter or Underwriters by the Representatives and the Company as provided
in subsection (a) above, the aggregate principal amount of such Firm Securities
or Optional Securities, as the case may be, which remains unpurchased does not
exceed one-eleventh of the aggregate principal amount of the Firm Securities or
Optional Securities, as the case may be, then the Company shall have the right
to require each non-defaulting Underwriter to purchase the principal amount of
Firm Securities or Optional Securities, as the case may be, which such
Underwriter agreed to purchase under the Pricing Agreement relating to such
Designated Securities and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the aggregate principal
amount of Firm Securities or Optional Securities, as the case may be, which such
Underwriter agreed to purchase under such Pricing Agreement) of the Firm
Securities or Optional Securities, as the case may be, of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of the Firm
Securities or Optional Securities, as the case may be, of a defaulting
Underwriter or Underwriters by the Representatives and the Company as provided
in subsection (a) above, the aggregate principal amount of Firm Securities or
Optional Securities, as the case may be, which remains unpurchased exceeds one-
eleventh of the aggregate principal amount of the Firm Securities or Optional
Securities, as the case may be, as referred to in subsection (b) above, or if
the Company shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Firm Securities or Optional
Securities, as the case may be, of a defaulting Underwriter or Underwriters,
then the Pricing Agreement relating to such Designated Securities shall
thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
17
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
11. If any Pricing Agreement or Over-allotment Option shall be terminated
pursuant to Section 9 hereof, the Company shall not then be under any liability
to any Underwriter with respect to the Firm Securities or Optional Securities
covered by such Pricing Agreement except as provided in Section 6 and Section 8
hereof; but, if for any other reason Designated Securities are not delivered by
or on behalf of the Company as provided herein, the Company will reimburse the
Underwriters through the Representatives for all out-of-pocket expenses approved
in writing by the Representatives, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of such Designated Securities, but the Company shall then be
under no further liability to any Underwriter with respect to such Designated
Securities except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement; Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Section 8 and Section 10 hereof, the officers and directors of the
Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence for each Pricing Agreement. As used herein,
"business day" shall mean any day when the Commission's office in Washington,
D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
18
16. This Agreement and each Pricing Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
Very truly yours,
UnumProvident Corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Sr. Vice - President
19
ANNEX I
Pricing Agreement
-----------------
Banc of America Securities LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
As Representatives of the several
Underwriters named in Schedule I hereto
c/o Banc of America Securities LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
March 2, 2001
Ladies and Gentlemen:
UnumProvident Corporation, a Delaware corporation (the "Company"), proposes,
subject to the terms and conditions stated herein and in the Underwriting
Agreement, dated March 2, 2001 (the "Underwriting Agreement"), to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters") the
Securities specified in Schedule II hereto (the "Designated Securities"). Each
of the provisions of the Underwriting Agreement is incorporated herein by
reference in its entirety, and shall be deemed to be a part of this Agreement to
the same extent as if such provisions had been set forth in full herein; and
each of the representations and warranties set forth therein shall be deemed to
have been made at and as of the date of this Pricing Agreement, except that each
representation and warranty that refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as therein
defined), and also a representation and warranty as of the date of this Pricing
Agreement in relation to the Prospectus as amended or supplemented relating to
the Designated Securities which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated to
act on behalf of the Representatives and on behalf of each of the Underwriters
of the Designated Securities pursuant to Section 12 of the Underwriting
Agreement and the address of the Representatives referred to in such Section 12
are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you, is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the Underwriting
Agreement incorporated herein by reference, the Company agrees to issue and sell
to each of the Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company, at the time and place and at the
purchase price to the Underwriters set forth in Schedule II hereto, the
principal amount of Designated Securities set forth opposite the name of such
Underwriter in Schedule I hereto, less the principal amount of Designated
Securities covered by Delayed Delivery Contracts, if any, as may be specified in
Schedule II.
If the foregoing is in accordance with your understanding, please sign and
return to us counterparts hereof, and upon acceptance hereof by you, on behalf
of each of the Underwriters, this letter and such acceptance hereof, including
the provisions of the Underwriting Agreement incorporated herein by reference,
shall constitute a binding agreement between each of the Underwriters and the
Company. It is understood that your acceptance of this letter on behalf of each
of the Underwriters is or will be pursuant to the authority set forth in a form
of Agreement among Underwriters, the form of which shall be submitted to the
Company
for examination upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
Very truly yours,
UnumProvident Corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Sr. Vice - President
Accepted as of the date hereof:
Banc of America Securities LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
As Representatives of the Several Underwriters
named in Schedule I hereto
By: Banc of America Securities LLC
By: /s/ Rock Fu
---------------------
Name: Rock Fu
Title: Managing Director
2
SCHEDULE I
Principal
Amount of
Firm
Securities
to be
Underwriter Purchased
----------- ------------
Banc of America Securities LLC.......................... $235,750,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc................................ 235,750,000
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co..................................... 34,500,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated....................... 34,500,000
Wachovia Securities, Inc................................ 34,500,000
------------
Total................................................ $575,000,000
============
SCHEDULE II
Title of Designated Securities:
7.625% Senior Notes due March 1, 2011 (the "Notes")
Aggregate Principal Amount:
$575,000,000 of the Notes
Price to Public:
99.535% of the principal amount of the Notes, plus accrued interest, if any,
from ▇▇▇▇▇ ▇, ▇▇▇▇
▇▇▇▇▇▇▇▇ Price by Underwriters:
98.885% of the principal amount of the Notes, plus accrued interest, if any,
commencing at the Time of Delivery
Underwriters' Commission:
0.650% of the aggregate principal amount of the Notes
Specified Funds for Payment of Purchase Price:
Same-Day funds
Indenture:
Indenture, to be dated as of March 9, 2001, between the Company and The Chase
Manhattan Bank, as Trustee
Maturity:
March 1, 2011
Interest Rate:
7.625% per annum
Interest Payment Dates:
March 1 and September 1, commencing September 1, 2001
Record Dates:
The 15th calendar day of the month immediately preceding the month in which
each interest payment date occurs
Redemption Provisions:
As set forth in the Prospectus Supplement, dated March 2, 2001, under
"Description of Notes--Optional Redemption"
Sinking Fund Provisions:
No sinking fund provisions
Defeasance Provisions:
As set forth in the Prospectus, dated September 1, 2000, or the Prospectus
Supplement, dated March 2, 2001
Time of Delivery:
9:30 A.M., New York City time, on March 9, 2001 (which is five business days
after the date of the Pricing Agreement relating to the Notes, which date may be
delayed by agreement among the Representatives and the Company (as defined
therein)
Form at Time of Delivery:
Book-entry only
Closing Location:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Delayed Delivery:
None
Names and Addresses of Representatives:
Designated Representatives: Banc of America Securities LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
Address for Notices, etc.: Banc of America Securities LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
2
ANNEX II
Pursuant to Section 7(e) of the Underwriting Agreement, the accountants named
therein 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
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules audited (and, if applicable, prospective
financial statements and/or pro forma financial information examined) by them
and included or incorporated by reference in the Registration Statement or
the Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as applicable, and
the related published rules and regulations thereunder; and, if applicable,
they have made a review in accordance with standards established by the
American Institute of Certified Public Accountants of the consolidated
interim financial statements, selected financial data, pro forma financial
information, prospective financial statements and/or condensed financial
statements derived from audited financial statements of the Company for the
periods specified in such letter, as indicated in their reports thereon,
copies of which have been furnished to the representatives of the
Underwriters (the "Representatives");
(iii) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company for
the five most recent fiscal years included in the Prospectus and included or
incorporated by reference in Item 6 of the Company's Annual Report on Form
10-K for the most recent fiscal year agrees with the corresponding amounts
(after restatement where applicable) in the audited consolidated financial
statements for five such fiscal years which were included or incorporated by
reference in the Company's Annual Reports on Form 10-K for such fiscal years;
(iv) 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 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 Prospectus, 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 condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included or incorporated by reference in the Company's Quarterly Reports
on Form 10-Q incorporated by reference in the Prospectus do not comply as
to form in all material respects with the applicable accounting
requirements of the Exchange Act as it applies to Form 10-Q and the
related published rules and regulations thereunder or are not in
conformity with generally accepted accounting principles applied on a
basis substantially consistent with the basis for the audited consolidated
statements of income, consolidated balance sheets and consolidated
statements of cash flows included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus 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 Company's Annual Report on Form 10-K for
the most recent fiscal year;
(C) the unaudited financial statements which were not included in the
Prospectus but from which were derived the unaudited condensed financial
statements referred to in clause (A) above and any unaudited income
statement data and balance sheet items included in the Prospectus and
referred to in Clause (B) above were not determined on a basis
substantially consistent with the basis for the audited financial
statements included or incorporated by reference in the Company's Annual
Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do not
comply as to form in all material respects with the applicable accounting
requirements of the 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 days prior to the date
of such letter, there have been any changes 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 included or incorporated by
reference in the Prospectus) or any increase in the consolidated long-term
debt of the Company and its subsidiaries, or any decreases in consolidated
net assets or other items specified by the Representatives, or any
increases in any 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 Prospectus, except in each case for
changes, increases or decreases which the 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 Prospectus to the specified
date referred to in Clause (E) above there were any decreases in
consolidated net revenues or any material decrease in operating profit or
any material decrease in the total or per share amounts of consolidated
net 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 preceding year and with any
other period of corresponding length specified by the Representatives,
except in each case for increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such
letter; and
(v) In addition to the audit referred to in their report(s) included or
incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (iv) above, they have carried out certain specified
procedures, 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 in the Prospectus (excluding documents incorporated by reference), or
in Part II of, or in exhibits and schedules to, the Registration Statement
specified by the Representatives or in documents incorporated by reference in
the Prospectus specified by the Representatives, and have compared certain of
such amounts, percentages and financial information with the accounting
records of the Company and its subsidiaries and have found them to be in
agreement.
All references in this Annex II to the Prospectus shall be deemed to refer to
the Prospectus (including the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date
2
of the letter delivered on the date of the Pricing Agreement for purposes of
such letter and to the Prospectus as amended or supplemented (including the
documents incorporated by reference therein) in relation to the applicable
Designated Securities for purposes of the letter delivered at the Time of
Delivery for such Designated Securities.
3
ANNEX III
DELAYED DELIVERY CONTRACT
-------------------------
UnumProvident Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Attention
, 20__
Dear Ladies and Gentlemen:
The undersigned hereby agrees to purchase from UnumProvident Corporation
(hereinafter called the "Company"), and the Company agrees to sell to the
undersigned,
$
principal amount of the Company's debt securities (hereinafter called the
"Designated Securities"), offered by the Company's Prospectus dated
20__, as amended or supplemented, receipt of a copy of which is hereby
acknowledged, at a purchase price of % of the principal amount thereof, plus
accrued interest from the date from which interest accrues as set forth below,
and on the further terms and conditions set forth below, and on the further
terms and conditions set forth in this contract.
The undersigned will purchase the Designated Securities from the Company on
, 20__ (the "Delivery Date") and interest on the Designated Securities so
purchased will accrue from , 20__.
The undersigned will purchase the Designated Securities from the Company on
the delivery date or dates and in the principal amount or amounts set forth
below:
PRINCIPAL DATE FROM WHICH
DELIVERY DATE AMOUNT INTEREST ACCRUES
---------------------- ------------------ ---------------------
, 20 $ , 20
, 20 $ , 20
Each such date on which Designated Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date."
Payment for the Designated Securities which the undersigned has agreed to
purchase on each Delivery Date shall be made to the Company or its order by
certified or official bank check in Clearing House funds at the office of
, or by wire transfer to a bank account specified by the Company, on such
Delivery Date upon delivery to the undersigned of the Designated Securities then
to be purchased by the undersigned in definitive fully registered form and in
such denominations and registered in such names as the undersigned may designate
by written, telex or facsimile communication addressed to the Company not less
than five full business days prior to such Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Designated Securities on each Delivery Date shall be subject to the condition
that the purchase of Designated Securities to be made by the undersigned shall
not on such Delivery Date be prohibited under the laws of the jurisdiction to
which
the undersigned is subject. The obligation of the undersigned to take delivery
of and make payment for Designated Securities shall not be affected by the
failure of any purchaser to take delivery of and make payment for Designated
Securities pursuant to other contracts similar to this contract.
The undersigned understands that Underwriters (the "Underwriters") are also
purchasing Designated Securities from the Company, but that the obligations of
the Undersigned hereunder are not contingent on such purchases. Promptly after
completion of the sale to the Underwriters the Company will mail or deliver to
the undersigned at its address set forth below notice to such effect,
accompanied by a copy of the Opinion of Counsel for the Company delivered to the
Underwriters in connection therewith.
The undersigned represents and warrants that, as of the date of this
contract, the undersigned is not prohibited from purchasing the Designated
Securities hereby agreed to be purchased by it under the laws of the
jurisdiction to which the undersigned is subject.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
This contract may be executed by either 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.
It is understood that the acceptance by the Company of any Delayed Delivery
Contract (including this contract) is in the Company's sole discretion and that,
without limiting the foregoing, acceptances of such contracts need not be on a
first-come, first-served basis. If this contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered by the Company.
Very truly yours,
______________________________________
By: __________________________________
(Authorized Signature)
Name:
Title:
______________________________________
(Address)
Accepted: , 200_
UnumProvident Corporation
By: _________________________________
Name:
Title:
A-2
Appendix A
----------
List of Significant Subsidiaries
--------------------------------
Colonial Companies, Inc.
Colonial Life & Accident Insurance Company
Provident Life and Accident Insurance Company
The ▇▇▇▇ ▇▇▇▇▇▇ Corporation
The ▇▇▇▇ ▇▇▇▇▇▇ Life Insurance Company
Unum Holding Company
Unum Life Insurance Company of America
A-3