SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) December 11, 2001
TORCHMARK CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 1-9052 63-0780404
(State or Other (Commission File Number) (IRS Employer
Jurisdiction Identification No.)
of Incorporation)
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2001 Third Avenue South, Birmingham, Alabama 35233
(Address of Principal Executive Offices) (Zip Code)
Registrant's Telephone Number, including area code (205) 325-4200
None
(Former Name or Former Address, if Changed Since Last Report)
Item 5. Other Events.
On December 11, 2001, Torchmark Corporation ("Torchmark"), entered into an underwriting agreement (the "Underwriting Agreement") with Banc One Capital Markets, Inc. and Banc of America Securities LLC, as representatives of the underwriters named in the Underwriting Agreement, for the sale of 6 1/4% senior notes in an aggregate principal amount of $180,000,000 (the "Senior Notes"). The Senior Notes are issued pursuant to Torchmark's registration statement on Form S-3 (File No. 333-83411), as amended, which registration statement was declared effective on November 30, 1999, and Torchmark's registration statement on Form S-3 filed pursuant to Rule 462(b) (File No. 333-74930), which became effective on December 12, 2001.
A copy of the Underwriting Agreement is filed as Exhibit 1.1 to this Form 8-K. A copy of the Supplemental Indenture, dated as of December 14, 2001, between Torchmark, Bank One Trust Company, National Association and The Bank of New York, defining the rights of the 6 1/4% Senior Notes is filed as Exibit 4.1 to this Form 8-K. The Statement re: Computation of Ratio of Earnings to Fixed Charges of Torchmark is filed as Exhibit 12.1. The consents of Deloitte & Touche LLP and KPMG LLP are filed as Exhibits 23.1 and 23.2, respectively.
Item 7. Financial Statements and Exhibits.
1.1 Underwriting Agreement dated December 11, 2001, between Torchmark and
Banc One Capital Markets, Inc. and Banc of America Securities LLC, as
representatives of the underwriters named in the Underwriting
Agreement.
4.1 Supplemental Indenture, dated as of December 14, 2001, between
Torchmark, Bank One Trust Company, National Association and The Bank
of New York, supplementing the Indenture Agreement dated February 1,
1987 (incorporated herein by reference to Exhibit 4(b) to Torchmark's
Registration Statement on Form S-3 (File No. 33-11716)), and defining
the rights of the 6 1/4% Senior Notes.
12.1 Statement re: Computation of Ratio of Earnings to Fixed Charges of
Torchmark
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of KPMG LLP
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
TORCHMARK CORPORATION
Date: December 14, 2001 /s/ Michael J. Klyce
-----------------------------------
Michael J. Klyce,
Vice President and Treasurer
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EXHIBIT 1.1
UNDERWRITING AGREEMENT
(Debt Securities)
December 11, 2001
Torchmark Corporation
2001 Third Avenue South
Birmingham, Alabama 35233
Ladies and Gentlemen:
We (the "Managers") are acting on behalf of the underwriters (including ourselves) named below (such underwriters being herein called the "Underwriters"), and we understand that Torchmark Corporation (the "Company"), a Delaware corporation, proposes to issue and sell to the several Underwriters $180,000,000 aggregate principal amount of 6 1/4 % Senior Notes due 2006 (the "Firm Underwriters' Securities" or the "Underwriters' Securities") of the Company.
The Underwriters' Securities are being offered and sold pursuant to a
shelf registration statement on Form S-3 (registration no. 333-83411) and a Rule
462 (b) Registration Statement (together, as amended to the date hereof, the
"Registration Statement") filed by the Company with the Securities and Exchange
Commission pursuant to the provisions of the Securities Act of 1933, as amended.
Subject to the terms and conditions set forth or incorporated by reference herein, the Company hereby agrees to sell and the Underwriters agree to purchase, severally and not jointly, the aggregate principal amount of Firm Underwriters' Securities set forth below opposite their names at a purchase price of 98.985% of the principal amount per Firm Underwriters' Security (the "Purchase Price").
Principal Amount
of
Firm
Underwriters'
Securities
Underwriters to Be Purchased
------------ ----------------
Banc One Capital Markets, Inc............................................... $85,500,000
Banc of America Securities LLC.............................................. 67,500,000
Fleet Securities, Inc....................................................... 18,000,000
SunTrust Capital Markets, Inc............................................... 9,000,000
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The Underwriters will pay for the Firm Underwriters' Securities upon delivery thereof at the offices of Sidley Austin Brown & Wood, 875 Third Avenue, New York, New York 10022 at 10:00 a.m. (New York time) on December 14, 2001, or at such other time, not later than 5:00 p.m. (New York time) on December 28, 2001, as shall be designated by us. The time and date of such payment and delivery are hereinafter referred to as the "Closing Date".
The Underwriters' Securities shall have the terms set forth in the Prospectus dated November 30, 1999, and the Prospectus Supplement dated December 11, 2001, including the following.
Terms of Underwriters' Securities
Designation of the Underwriters'
Securities: Torchmark 6 1/4% Senior Notes due 2006
Issuer of Underwriters' Securities: Torchmark Corporation
Aggregate Principal Amount of Firm
Underwriters' Securities: $180,000,000
Price to Public: 99.585% of principal amount per
Underwriters' Security
Purchase Price: 98.985% of principal amount per
Underwriters' Security
Closing Date: December 14, 2001
Form of Payment: Immediately available funds
Form: Book-entry
Ratings: S&P: A
Moody's: Baa1
Fitch: A+
A.M. Best: A
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Other Terms:
Maturity Date: December 15, 2006
Interest Rate: 6 1/4% per annum
Interest Payment Dates: June 15 and December 15 of each year,
beginning June 15, 2002.
Record Dates: June 1 or December 1 preceding the relevant
interest payment date.
Redemption: None
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Capitalized terms used above and not defined herein shall have the meanings set forth in the Prospectus and Prospectus Supplement referred to above.
Except as set forth below, all provisions contained in the document
entitled Underwriting Agreement Standard Provisions dated December 11, 2001 (the
"Standard Provisions") relating to the Underwriters' Securities of the Company,
a copy of which is attached hereto, are herein incorporated by reference in
their entirety and shall be deemed to be a part of this Underwriting Agreement
to the same extent as if such provisions had been set forth in full herein,
except that (i) if any term defined in such document is otherwise defined
herein, the definition set forth herein shall control, (ii) all references in
such document to a type of security that is not an Underwriters' Security shall
not be deemed to be a part of this Agreement, (iii) any references in such
document to "Additional Underwriters' Securities" or "Option Closing Date" shall
not be applicable in connection with the transactions contemplated hereby and
(iv) all references in such document to a type of agreement that has not been
entered into in connection with the transactions contemplated hereby shall not
be deemed to be a part of this Agreement.
Any notice by the Company to the Underwriters pursuant to this Underwriting Agreement shall be sufficient if given in accordance with Section 10 of the Standard Provisions addressed to: Banc One Capital Markets, Inc., 1 Bank One Plaza, Suite IL1-0595, Chicago, IL 60670, attention Investment Grade Securities and Banc of America Securities LLC, 9 West 57th Street, 31st Floor, New York, NY 10019, attention Lily Chang.
Please confirm your agreement by having an authorized officer sign a copy of this Agreement in the space set forth below.
Very truly yours,
BANC ONE CAPITAL MARKETS, INC.
BANC OF AMERICA SECURITIES LLC
FLEET SECURITIES, INC.
SUNTRUST CAPITAL MARKETS, INC.
By: BANC ONE CAPITAL MARKETS, INC.
By: /s/ Katherine Cokic ------------------------------------- Name: Katherine Cokic Title: Associate Director |
By: BANC OF AMERICA SECURITIES LLC
By: /s/ Lily Chang ------------------------------------- Name: Lily Chang Title: Principal |
Acting severally on behalf of themselves and as representatives of the Underwriters named herein.
Agreed and accepted:
TORCHMARK CORPORATION
By: /s/ Carol A. McCoy
-------------------------------
Name: Carol A. McCoy
Title: Vice-President, Associate
Counsel and Secretary
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TORCHMARK CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (DEBT SECURITIES)
December 11, 2001
From time to time, Torchmark Corporation, a Delaware corporation (the "Company"), may enter into one or more underwriting agreements that provide for the sale of designated securities (the "Debt Securities") to the several underwriters named therein. The standard provisions set forth herein may be incorporated by reference in any such underwriting agreement (an "Underwriting Agreement"). The Underwriting Agreement, including the provisions incorporated therein by reference, is herein referred to as "this Agreement". Unless otherwise defined herein, terms defined in the Underwriting Agreement are used herein as therein defined.
The Debt Securities will be issued under an Indenture, dated as of February 1, 1987, as supplemented as of December 14, 2001 (together, the "Indenture"), between the Company, Bank One Trust Company, National Association and The Bank of New York, as trustee under the Indenture with respect to the Debt Securities (the "Trustee").
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-83411) for the
registration of certain securities, including the Debt Securities, and a
prospectus or prospectuses relating to such securities and will file with the
Commission a prospectus supplement or supplements specifically relating to the
Debt Securities pursuant to Rule 424 under the Securities Act of 1933, as
amended (the "Securities Act"). The term "Registration Statement" means the
registration statement as amended to the date of the Underwriting Agreement and,
upon the filing thereof with the Commission, a registration statement, if any
(the "Rule 462 (b) Registration Statement"), with respect to the Debt Securities
filed pursuant to Rule 462 (b) under the Securities Act. The term "Basic
Prospectus" means the prospectus included in the Registration Statement. The
term "Prospectus" means the Basic Prospectus together with the prospectus
supplement (other than a preliminary prospectus supplement) specifically
relating to the Debt Securities as filed with the Commission pursuant to Rule
424. The term "preliminary prospectus" means a preliminary prospectus supplement
specifically relating to the Debt Securities together with the Basic Prospectus.
As used herein, the terms "Registration Statement", "Basic Prospectus",
"Prospectus" and "preliminary prospectus" shall include in each case the
material, if any, incorporated by reference therein.
The term "Firm Underwriters' Securities" means the Debt Securities to be purchased by the Underwriters herein. The term "Additional Underwriters' Securities" means the additional Debt Securities, if any, that the Underwriters will have the right to purchase, severally and not jointly, solely for the purpose of covering over-allotments made in connection with the offering of the Firm Underwriters' Securities. The Firm Underwriters' Securities and the Additional Underwriters' Securities, if any, are referred to herein as the "Underwriters' Securities".
The Company and the Underwriters agree as follows:
(a) Subsequent to the execution and delivery of the Underwriting Agreement and prior to the Closing Date and, if applicable, the Option Closing Date,
(i) (1) the Debt Securities shall have been assigned at least the ratings by the rating agencies set forth in the applicable Underwriting Agreement, and, on the Closing Date, the Company shall have delivered to the Managers a letter dated the Closing Date, from each such rating agency, or other evidence satisfactory to the Managers, confirming that the Debt Securities have such ratings; and (2) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Debt Securities or any of the Company's securities by any "nationally recognized statistical rating organization", as such term is defined for purposes of Rule 436(g)(2) under the Securities Act;
(ii) no stop order suspending the effectiveness of the Registration Statement (including the Rule 462 (b) Registration Statement, if applicable) shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the Commission and there shall have been no material adverse change or any development involving a prospective material adverse change in the condition of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration Statement and the Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of the Underwriting Agreement);
(iii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business, operations or prospects of the Company and its subsidiaries, taken as a whole, from that set forth in the Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of the Underwriting Agreement) that, in the Managers' reasonable judgment, is material and adverse
and that makes it, in the Managers' reasonable judgment, impracticable to market the Debt Securities on the terms and in the manner contemplated in the Prospectus; and
(iv) the Underwriters shall have received on the Closing Date and, if applicable, the Option Closing Date, a certificate, dated the Closing Date or the Option Closing Date, as the case may be, and signed by an executive officer of the Company, or any other person authorized by the Board of Directors of the Company to execute any such written statement (an "Executive Officer"),
(A) to the effect set forth in Sections 3(a)(i)(2) and 3(a)(ii) hereof (in the case of the certificate signed by an Executive Officer of the Company); and
(B) to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date or the Option Closing Date, as the case may be, and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied on or before the Closing Date or the Option Closing Date, as the case may be.
The Executive Officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(b) The Underwriters shall have received on the Closing Date and, if applicable, the Option Closing Date, an opinion of Carol A. McCoy, Esq., Vice President, Associate Counsel and Secretary for the Company, dated the Closing Date or the Option Closing Date, as the case may be, in substantially the form set forth as Exhibit A.
(c) The Underwriters shall have received on the Closing Date and, if applicable, the Option Closing Date, an opinion of Maynard, Cooper & Gale, P.C., special counsel for the Company, dated the Closing Date or the Option Closing Date, as the case may be, in substantially the form set forth as Exhibit B.
(d) The Underwriters shall have received on the Closing Date and, if applicable, the Option Closing Date, an opinion of Sidley Austin Brown & Wood LLP, counsel for the Underwriters, dated the Closing Date or the Option Closing Date, as the case may be, in substantially the form set forth as Exhibit C.
(e) The Underwriters shall have received (i) on the date of the Underwriting Agreement a letter dated such date, (ii) on the Closing Date a letter dated the Closing Date and, (iii) if applicable, on the Option Closing Date a letter dated the Option Closing Date, in each case in form and substance satisfactory to the Managers, from the independent public accountants of the Company, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement and the Prospectus.
(a) To furnish the Managers, without charge, as many copies of the Registration Statement, including exhibits and materials, if any, incorporated by reference therein and, during the period mentioned in paragraph (c) below, the Prospectus, any documents incorporated by reference therein and any supplements and amendments thereto or to the Registration Statement, as the Managers may reasonably request. The terms "supplement" and "amendment" or "amend" as used in this Agreement with respect to the Registration Statement, Prospectus or preliminary prospectus shall include all documents filed by the Company with the Commission subsequent to the date of the Basic Prospectus, pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), which are deemed to be incorporated by reference in the Prospectus.
(b) Before amending or supplementing the Registration Statement (or filing the Rule 462 (b) Registration Statement, if applicable) or the Prospectus with respect to the Debt Securities, to furnish the Managers a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which the Managers reasonably object promptly after reasonable notice thereof.
(c) If, during such period after the commencement of the public offering of the Debt Securities as in the opinion of counsel for the Underwriters the Prospectus is required by law to be delivered with respect thereto, any event shall occur or condition exist as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with law, forthwith at its own expense, to amend or to supplement the Prospectus and to furnish such amendment or supplement to the Underwriters, so as to correct such statement or omission or effect such compliance.
(d) To qualify the Debt Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Managers shall reasonably request and to pay all reasonable expenses (including fees and disbursements of counsel) in connection with such qualification.
(e) To make generally available to the Company's security holders as soon as practicable an earnings statement of the Company covering a twelve month period beginning after the date of the Underwriting Agreement (but in no event commencing later than 90 days after such date), which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder and to advise the Managers in writing when such statement has been made available.
(f) During a period of 90 days from the date of the Underwriting Agreement, without the prior written consent of the Managers, on behalf of the Underwriters, not to offer, sell, contract to sell, grant any option for the sale of, or otherwise dispose of, any
Debt Securities or any securities of the Company that are substantially similar to the Debt Securities including, but not limited to, any securities that are convertible into or exercisable or exchangeable for or that represent the right to receive Debt Securities or any such substantially similar securities of the Company (other than the Debt Securities offered hereby).
(g) Whether or not any sale of Debt Securities is consummated, to pay or cause to be paid all expenses incident to the performance of the obligations of the Company under the Underwriting Agreement, including, without limitation: (i) the preparation and filing of the Registration Statement (including the Rule 462 (b) Registration Statement, if any) and the Prospectus and all amendments and supplements thereto, (ii) the preparation, issuance and delivery of the Debt Securities, (iii) the fees and disbursements of the Company's counsel and accountants, (iv) the qualification of the Debt Securities under securities or Blue Sky laws in accordance with the provisions of Section 4(d) hereof, including filing fees and the fees and disbursements of counsel for the Underwriters in connection therewith and in connection with the printing or producing and delivery of any Blue Sky or legal investment memoranda, (v) the printing and delivery to the Underwriters in quantities as hereinabove stated of copies of the Registration Statement and all amendments thereto and of the Prospectus and any amendments or supplements thereto, (vi) the filing fees incident to, and the fees and disbursements of counsel to the Underwriters in connection with, the review, if any, by the National Association of Securities Dealers, Inc. (the "NASD") of the terms of the sale of the Debt Securities, (vii) any fees charged by rating agencies for the rating of the Debt Securities and (viii) all costs and expenses, if any, incident to listing the Debt Securities on the New York Stock Exchange.
(h) 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.
therein not misleading and (iv) the Prospectus, as of its date, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; except that the above representations and warranties do not apply to statements or omissions in the Registration Statement or the Prospectus based upon information furnished to the Company in writing by any Underwriter expressly for use therein or to that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the trustee referred to in the Registration Statement.
(b) The Registration Statement (including the Rule 462 (b) Registration Statement, if any) has become effective; no stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are pending before or threatened by the Commission.
(c) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Delaware, has all requisite corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(d) Each "significant subsidiary" (within the meaning of Rule 1-02 under Regulation S-X promulgated by the Commission) (the "Significant Subsidiaries") of the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has all requisite corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; all of the issued shares of capital stock of each Significant Subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims.
(e) Each of the Company and its Significant Subsidiaries engaged in the business of insurance are duly organized and licensed as insurance companies or insurance holding companies, as the case may be, in their respective jurisdictions of incorporation (if so required) and, in the case of the Company, each other jurisdiction where it is required to be so licensed or authorized to conduct its business, and, in the case of the Significant Subsidiaries engaged in the business of insurance, each other jurisdiction in which such Significant Subsidiary has written 5% or more of the total amount of premiums written by it during each of the last two calendar years, except for any such jurisdictions in which the failure to be so licensed or authorized would not have
a material adverse effect on the Company and its subsidiaries, taken as a whole; neither the Company nor any Significant Subsidiary engaged in the business of insurance has received any notification from any insurance regulatory authority to the effect that any additional authorization, approval, order, consent, license, certificate, permit, registration or qualification from such insurance regulatory authority is needed to be obtained by the Company or any such Significant Subsidiary in any case where it would be reasonably expected that failure to obtain any such additional authorization, approval, order, consent, license, certificate, permit, registration or qualification would have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(f) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(g) The Indenture has been duly qualified under the Trust Indenture Act and has been duly authorized by the Company and, upon execution and delivery thereof by the Company (and assuming due authorization, execution and delivery by the Indenture Trustee), will, as of the Closing Date, be a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as the enforceability thereof (i) may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, liquidation, moratorium and other similar laws affecting creditors' rights generally and (ii) is subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law.
(h) The Debt Securities, which will constitute senior unsubordinated indebtedness of the Company, have 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 in accordance with the terms of the Underwriting Agreement, will be entitled to the benefits of the Indenture, and will be valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture, except as the enforceability thereof (i) may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, liquidation, moratorium and other similar laws affecting creditors' rights generally and (ii) is subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law.
(i) The execution and delivery by the Company of, and the performance by the Company of its obligations under, the Underwriting Agreement, the Indenture and the Debt Securities, and the issuance and sale of the Debt Securities as contemplated in the Underwriting Agreement will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Company or any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under the Underwriting Agreement, the Indenture and the Debt Securities
except such as have been obtained or may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Debt Securities.
(j) Neither the Company nor any Significant Subsidiary is in violation of its certificate of incorporation or by-laws; neither the Company nor any Significant Subsidiary is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound, except for such defaults that will not have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(k) There has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business, operations or prospects of the Company and its subsidiaries, taken as a whole, from that set forth in the Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of the Underwriting Agreement).
(l) Each preliminary prospectus filed as part of the registration statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act, complied when so filed in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder.
(m) There are no legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject that are required to be described in the Registration Statement or the Prospectus and are not so described or any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required.
(n) The Company is not and, after giving effect to the offering and sale of the Debt Securities and the application of the proceeds thereof as described in the Prospectus, will not be, required to register as an "investment company" as such term is defined in the Investment Company Act of 1940, as amended.
(o) The Company and its subsidiaries (i) are in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"), (ii) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(p) There are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties) which would, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(q) Deloitte & Touche LLP, and, with respect to the financial statements and supporting schedules for the year ended December 31, 1998, KPMG LLP, the accountants who certified the financial statements and supporting schedules included in or incorporated by reference in the Registration Statement and the Prospectus, are independent public accountants as required by the Securities Act and the rules and regulations of the Commission thereunder.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and any person controlling the Company to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter expressly for use in the Registration Statement, any preliminary prospectus or the Prospectus or any amendments or supplements thereto.
(c) If any proceeding (including any government investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to either of the two preceding paragraphs, such person (the "indemnified party") shall promptly notify the person against whom such indemnity may be sought (the "indemnifying party") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or (iii) the indemnifying party shall have failed to retain counsel reasonably satisfactory to the indemnified party. It is understood that the indemnifying party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties, and that all such fees and expenses shall be paid as they are incurred. Such firm shall be designated in writing by the Managers in the case of parties indemnified pursuant to the second preceding paragraph and by the Company in the case of parties indemnified pursuant to the immediately preceding paragraph. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 6 is unavailable to an indemnified party under Section 6(a) or 6(b) in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other from the offering of the Debt Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other in connection with the offering of the Debt Securities shall be deemed to be in the same proportion as the total net proceeds from the offering of such Debt Securities (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by the Underwriters in respect thereof. The relative fault of the Company on the one hand and of the Underwriters on the other 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 or by the Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(e) The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 6 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 considerations referred to in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, 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 Section 6, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Debt Securities underwritten and distributed to the public by such Underwriter 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 Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriter's obligations to contribute pursuant to this Section 6 are several, in proportion to the respective principal amounts of Debt Securities purchased by each of such Underwriters, and not joint.
(f) The indemnity and contribution agreements contained in this Section 6 and the representations and warranties of the Company in this Agreement shall remain operative and in full force and affect regardless of (i) any termination of this Agreement, (ii) any investigation made by any Underwriter or on behalf of any Underwriter or any person controlling any Underwriter or buyer on behalf of the Company, its directors or officers or any person controlling the Company and (iii) acceptance of and payment for any of the Debt Securities.
or escalation of hostilities or other national or international calamity or crisis of such magnitude and severity in its effect on the financial markets of the United States and (b) such event singly or together with any other such event makes it, in the reasonable judgment of the Managers, impracticable to market the Debt Securities on the terms and in the manner contemplated in the Prospectus.
EXHIBIT A
FORM OF OPINION OF CAROL A. MCCOY, ESQ.
VICE PRESIDENT, ASSOCIATE COUNSEL AND SECRETARY
FOR THE COMPANY
[Date]
[Names and Addresses of Underwriters]
Dear Ladies and Gentlemen:
I am Vice President, Associate Counsel and Secretary of Torchmark Corporation, a Delaware corporation (the "Company"), and, as such, have served as counsel for the Company in connection with the issuance and sale to the several Underwriters named in the Underwriting Agreement dated December [_], 2001 (the "Underwriting Agreement") of $[_] in principal amount of [_]% Senior Notes due [_] (the "Debt Securities"). Terms used in this opinion and not otherwise defined have the same meanings as in the Underwriting Agreement.
The Debt Securities are to be issued pursuant to an indenture, dated as of February 1, 1987 and supplemented as of December [_], 2001, between the Company, Bank One Trust Company, National Association and The Bank of New York, as indenture trustee with respect to the Debt Securities, and an Officer's Certificate, dated as of such date and issued pursuant thereto (collectively, the "Indenture").
I am familiar with and have examined such documents and records as I deemed necessary to render this opinion, including the Underwriting Agreement, the Indenture and forms of the Debt Securities.
In my examination I have assumed but have not independently verified the genuineness of all signatures on all documents examined by me, the conformity to original documents of all documents submitted to us as certified or facsimile copies and the authenticity of all such documents.
Based on the foregoing, and subject to the qualifications hereinafter set forth, I am of the opinion that:
(i) the Company (1) has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and (2) is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(ii) each of Liberty National Life Insurance Company, Globe Life And Accident Insurance Company, United American Insurance Company, United Investors Life Insurance Company and American Income Life Insurance Company (collectively, the "Designated Subsidiaries"), (1) has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation and has all requisite corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and (2) is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; all of the issued shares of capital stock of each such Designated Subsidiary have been duly and validly authorized and issued, are fully paid and nonassessable and are owned directly or indirectly by the Company free and clear of any and all liens, encumbrances, equities or claims;
(iii) each Designated Subsidiary is duly qualified and/or licensed to transact the business of insurance and is in good standing in each jurisdiction in which, during either of the last two calendar years, it wrote five percent (5%) or more of the total premiums written by it;
(iv) the execution and delivery by the Company of, and the performance by the Company of its obligations under, the Underwriting Agreement, the Indenture and the Debt Securities, and the issuance and sale of the Debt Securities as contemplated in the Underwriting Agreement, will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Company or, to my knowledge, any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under the Underwriting Agreement, the Indenture and the Debt Securities, except such as have been obtained or may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Debt Securities;
(v) after due inquiry, I do not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which any property of the Company or any of its subsidiaries is subject that are required to be described in the Registration Statement or the Prospectus and are not so described or of any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement which are not described or to be filed as required;
(vi) the statements (a) in Part I of the Annual Report on Form 10-K of the Company for the year ended December 31, 2000, under the captions "Item 1--Business--Regulation" and "Item 3--Legal Proceedings" and (b) in Part II of the Quarterly Reports on Form 10-Q of the Company for the quarters ended March 31, 2001, June 30, 2001 and September 30, 2001, under the caption "Item I--Legal Proceedings", in each case insofar as such statements constitute summaries of legal matters, documents or proceedings referred to therein, fairly summarize the matters referred to therein in all material respects; and
(vii) I am of the opinion that each document incorporated by reference in the Registration Statement and the Prospectus (other than the financial statements, notes, and schedules and other financial data included or incorporated by reference in such documents, as to which I express no opinion) complied as to form when filed with the Securities and Exchange Commission in all material respects with the Securities Exchange Act of 1934, as amended, and the rules and the regulations of the Securities and Exchange Commission thereunder.
I am licensed to practice law only in the State of Alabama, and, accordingly, I offer no opinion as to the application of decisions or statutory law (including conflict of law rules) of any jurisdiction other than the State of Alabama, the State of Delaware and the United States of America.
This opinion is delivered pursuant to Section 3(b) of the Underwriting Agreement at the request of the Company and is intended solely for your use as Underwriters. As such, it may not be relied upon by any other person or for any other purpose other than for the legal conclusions expressed herein.
Very truly yours,
Carol A. McCoy, Esq.
EXHIBIT B
FORM OF OPINION OF MAYNARD, COOPER & GALE, P.C.
SPECIAL COUNSEL FOR THE COMPANY
[Date]
[Names and Addresses of Underwriters]
Dear Ladies and Gentlemen:
We have acted as special counsel for Torchmark Corporation, a Delaware corporation (the "Company"), in connection with the issuance and sale by the Company to the Several Underwriters named in the Underwriting Agreement, dated December [_], 2001 (the "Underwriting Agreement"), of $[_] in principal amount of [_]% Senior Notes due [_] (the "Debt Securities"). Terms used in this opinion and not otherwise defined have the same meanings as in the Underwriting Agreement.
The Debt Securities are to be issued pursuant to an indenture, dated as of February 1, 1987 and supplemented as of December [_], 2001, between the Company, Bank One Trust Company, National Association and The Bank of New York, as indenture trustee with respect to the Debt Securities, and an Officer's Certificate, dated as of such date and issued pursuant thereto, (collectively, the "Indenture").
We have participated in the preparation of the Company's Registration
Statement on Form S-3 (File No. 333-83411) (other than the documents
incorporated by reference in the prospectus included therein (the "Incorporated
Documents")) filed with the Securities and Exchange Commission (the
"Commission") pursuant to the provisions of the Securities Act of 1933, as
amended (the "Securities Act"). Although we did not participate in the
preparation of the Incorporated Documents, we have reviewed such documents. In
addition, we have reviewed evidence that the Registration Statement was declared
effective under the Securities Act and that the Indenture was qualified under
the Trust Indenture Act of 1939, as amended, on November 30, 1999. The
registration statement (including the Incorporated Documents and the prospectus
supplement dated December [_], 2001 specifically relating to the Debt Securities
(the "Prospectus Supplement")) as amended to the date of the Prospectus
Supplement, and including the registration statement on Form S-3 (File
No. 333-____) filed by the Company on December 11, 2001 pursuant to Rule 462
(b) under the Securities Act (the "Rule 462 (b) Registration Statement), is
hereinafter referred to as the "Registration Statement", and the prospectus
included in the Registration Statement (the "Basic Prospectus") as supplemented
by the Prospectus Supplement is hereinafter referred to as the "Prospectus".
As special counsel, we have examined the Underwriting Agreement, the Indenture and the forms of Debt Securities, and originals or copies of certain corporate documents of the Company; certificates and statements of public officials, corporate agents, officers of the Company, and other persons; and such other documents as we have deemed necessary as a basis for our opinions set forth below. In this connection, we have assumed the genuineness of all signatures and the authenticity and correctness of all copies of documents examined. Also, we have relied upon such certificates and statements of public officials, corporate agents, officers of the Company, and other persons with respect to the accuracy of material factual matters that were not independently established.
Based on the foregoing, and subject to the qualifications hereinafter set forth, we are of the opinion that:
(i) The Underwriting Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended, and has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as the enforceability thereof (i) may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, liquidation, moratorium and other similar laws affecting creditors' rights generally and (ii) is subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law;
(iii) The Debt Securities have 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 in accordance with the Underwriting Agreement, will be valid and binding obligations of the Company, enforceable against the Company in accordance with its terms and entitled to the benefits of the Indenture, except as the enforceability thereof (i) may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, liquidation, moratorium and other similar laws affecting creditors' rights generally and (ii) is subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law;
(iv) The execution and delivery by the Company of, and the performance by the Company of its obligations under, the Underwriting Agreement, the Indenture and the Debt Securities will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Company;
(v) No consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under the Underwriting Agreement, the Indenture and the Debt Securities except such as have been obtained or may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Debt Securities;
(vi) The Company is not, and after giving effect to the issuance of the Debt Securities and assuming the application of the proceeds thereof as described in the Prospectus, will not be, required to register as an "investment company" under the Investment Company Act of 1940, as amended;
(vii) The statements (a) in the Basic Prospectus under the caption "Description of Securities--Description of Debt Securities," (b) in the Prospectus Supplement under the captions "Description of Senior Notes" and "Underwriting" and (c) in the Registration Statement in Item 15, in each case insofar as such statements constitute summaries of legal matters, documents or proceedings referred to therein, fairly summarize the matters referred to therein in all material respects.
We have not ourselves checked the accuracy, completeness or fairness of, or otherwise verified, the information furnished with respect to other matters in the Registration Statement (including the Rule 462 (b) Registration Statement, if any) or Prospectus. We have generally reviewed and discussed with your representatives and with certain officers and employees of, and counsel and independent public accountants for the Company, the information furnished, whether or not subject to our check and verification. On the basis of such consideration, review and discussion, but without independent check or verification, except as stated, nothing has come to our attention that causes us to believe that (i) the Registration Statement (including the Rule 462 (b) Registration Statement, if any) and the Prospectus (except for the financial statements and financial schedules and other financial data included or incorporated by reference therein, as to which we express no belief, and except for that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification of the trustees referred to in the Registration Statement (the "Form T-1")) do not comply as to form in all material respects with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder, (ii) the Registration Statement (except for the financial statements and financial schedules and other financial data included or incorporated by reference therein, as to which we express no belief, and except for the Form T-1), at the time the Registration Statement (or, if an amendment to the Registration Statement or an Annual Report on Form 10-K has been filed by the Company with the Commission subsequent to the effectiveness of the Registration Statement, then at the time such amendment became effective or at the time of the most recent such filing, as the case may be) became effective, contained any 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 (iii) the Prospectus (except for the financial statements and financial schedules and other financial data included or incorporated by reference therein, as to which we express no belief, and except for the Form T-1), as of its date and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
We are members of the Bar of the State of Alabama, and this opinion is limited in all respects to the laws of the State of Alabama, the General Corporation Law of the State of Delaware, and the United States of America. As to all matters governed by the laws of the State of New York with respect to our opinions in paragraphs (ii) and (iii), we are relying on the opinion dated today of your counsel, Sidley Austin Brown & Wood LLP.
This opinion is being delivered to you at the request of the Company in connection with the Underwriting Agreement and the transactions contemplated by the Underwriting Agreement, and may not be relied on by any other person or for any other purpose without our prior written consent.
Very truly yours,
EXHIBIT C
FORM OF OPINION OF SIDLEY AUSTIN BROWN & WOOD LLP
COUNSEL FOR THE UNDERWRITERS
[Date]
[Names and Addresses of Underwriters]
Dear Ladies and Gentlemen:
We have acted as counsel for the Underwriters named in the Underwriting Agreement (the "Underwriting Agreement"), dated December [_], 2001, among Torchmark Corporation, a Delaware corporation (the "Company"), and said Underwriters, relating to the issuance and sale by the Company and the purchase by the Underwriters, severally and not jointly, of $[ ] aggregate principal amount of [_]% Senior Notes due 20__ (the "Notes") to be issued pursuant to an indenture, dated as of February 1, 1987, as supplemented or amended by the indenture supplement, dated as of December [_], 2001 (together, the "Indenture"), between the Company, Bank One Trust Company, National Association and The Bank of New York, as trustee under the Indenture with respect to the Notes (the "Trustee"). This opinion is furnished to you pursuant to Section 3(d) of the Underwriting Agreement. Capitalized terms used herein and not otherwise defined have the meanings ascribed to them in the Underwriting Agreement.
As counsel to the Underwriters, we have examined such documents and records as we deemed appropriate, including the following:
1. Copy, certified as of a recent date by the Secretary of State of the State of Delaware, of the Certificate of Incorporation of the Company.
2. Certificate of recent date of the Secretary of State of the State of Delaware as to the due incorporation and good standing of the Company.
3. Copies, certified by the Secretary of the Company to be true, complete and correct copies, of resolutions duly adopted by the Board of Directors of the Company on [_] [and resolutions duly adopted by the Finance Committee of the Board of Directors on [_] ] relating to, among other matters, authorization of the issuance and sale of the Notes and preparation and filing of a registration statement with the Securities and Exchange Commission (the "Commission"), and a copy, certified by the Secretary of the Company to be true and complete, of the bylaws of the Company as in effect on the date of such resolutions and at all times thereafter up to and including the date hereof.
4. Certain minute book records of the Company and certain of its subsidiaries as furnished to us by the Company.
5. Executed counterparts of the Underwriting Agreement.
6. Executed counterparts of the Indenture.
7. Specimen, certified by the Secretary of the Company to be a true and correct specimen, of the global Note.
8. Conformed copies of the Registration Statement on Form S-3 (File No. 333- 83411), Pre-Effective Amendment No. 1, Post-Effective Amendment No. 1 and Post-Effective Amendment No. 2 thereto, filed by the Company with the Commission on July 21, 1999, September 17, 1999, October 26, 2001 and December [_], 2001 respectively, pursuant to the Securities Act of 1933, as amended (the "1933 Act"), and the rules and regulations promulgated by the Commission thereunder (the "1933 Act Regulations"), and of the Registration Statement on Form S-3 (File No. 333-_____) filed by the Company with the Commission on December 11, 2001 pursuant to Rule 462 (b) under the 1933 Act (the "Rule 462 (b) Registration Statement"), relating to, among other things, debt securities, including the Notes (such Registration Statement, in the form in which it became effective on December 11, 2001 by the filing of Post- Effective Amendment No. 2 thereto, together with the Rule 462 (b) Registration Statement, and the Prospectus, dated November 30, 1999, constituting a part of such Registration Statement, as supplemented by a Prospectus Supplement, dated December [_], 2001, relating to the Notes, including (except as otherwise specified) the documents incorporated or deemed to be incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, are hereinafter referred to as the "Registration Statement" and the "Prospectus," respectively).
9. Evidence satisfactory to us to the effect that the Registration Statement became effective under the 1933 Act.
In rendering this opinion, we have relied, as to matters of fact, upon representations and certificates of officers and employees of the Company and its subsidiaries, certificates of third parties and certificates of governmental authorities, and we have assumed the genuineness of signatures of all persons signing any documents, the authority of all persons signing any document on behalf of parties thereto, the authority of all governmental authorities, the truth and accuracy of all matters of fact set forth in all certificates furnished to us, the authenticity of all documents submitted to us as originals and the conformity to original documents of all documents submitted to us as certified, conformed or photostatic copies.
We have also assumed the conformity of the documents filed with the Commission via the Electronic Data Gathering, Analysis and Retrieval System ("EDGAR"), except for required EDGAR formatting changes, to physical copies of the documents delivered to the Company and submitted for our examination.
Based upon the foregoing, and subject to the limitations, qualifications and exceptions set forth herein, we are of the opinion that:
(i) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(ii) The Indenture has been duly qualified under the Trust Indenture Act, has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as the enforceability thereof may be limited by fraudulent conveyance, bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws relating to or affecting creditors' rights generally or by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or law.
(iii) The Notes have been duly authorized by the Company and, when duly executed and delivered by the Company and authenticated by the Trustee in the manner provided in the Indenture and delivered against payment of the purchase price therefor specified in the Underwriting Agreement, will be entitled to the benefits of the Indenture and will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the enforceability thereof may be limited by fraudulent conveyance, bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws relating to or affecting creditor's rights generally or by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or law.
(iv) The Notes and the Indenture conform as to legal matters in all material respects to the descriptions thereof contained in the Prospectus.
We have participated in conferences with officers and representatives of the Company, representatives of the independent accountants of the Company, and representatives of the Underwriters at which the contents of the Registration Statement (including the Rule 462 (b) Registration Statement, if any) and the Prospectus and related matters were discussed, but we have not participated in the preparation of the documents incorporated by reference in the Registration Statement (including the Rule 462 (b) Registration Statement, if any) and the Prospectus and, accordingly, our knowledge of those documents is limited to our review thereof. We have made no independent check or verification of the accuracy, completeness or fairness of the statements contained in the Registration Statement (including the Rule 462 (b) Registration Statement, if any) or the Prospectus (other than as stated in paragraph (iv) above) and we are not passing upon or assuming any responsibility therefor (other than as described above). Nothing, however, has come to our attention that would lead us to believe that (i) the Registration Statement (including the Rule 462 (b) Registration Statement, if any) and the Prospectus (excluding the documents incorporated by reference in the Prospectus and except for the financial statements and supporting schedules and other financial data included or incorporated by reference therein or omitted therefrom, as to which we express no belief, and except for that part of the Registration Statement that constituted the Statements of Eligibility and Qualification of the trustees referred to in the Registration Statement (the "Form T-1s")), do not comply as to form in all material respects with the requirements of the 1933 Act and the applicable rules and regulations thereunder, (ii) the Registration Statement (except for financial statements and
supporting schedules and other financial data included or incorporated by reference therein or omitted therefrom, as to which we express no belief and except for the Form T-1s), on its effective date (or, if an amendment to the Registration Statement or an Annual Report on Form 10-K has been filed by the Company with the Commission subsequent to the effectiveness of the Registration Statement, then at the time such amendment became effective or at the time of the most recent such filing, as the case may be) contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or (iii) that the Prospectus (except for financial statements and supporting schedules and other financial data included or incorporated by reference therein or omitted therefrom, as to which we express no belief, and except for the Form T- 1s), at the applicable date of the Prospectus or at the date hereof, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
We have examined the opinions of (a) Carol A. McCoy, Esq., Vice President, Associate Counsel and Secretary of the Company and (b) Maynard, Cooper & Gale, P.C., special counsel for the Company, each dated the date hereof and delivered to you pursuant to Sections 3(b) and 3(c), respectively, of the Underwriting Agreement, and we believe that such opinions are substantially responsive to the requirements therefor.
We express no opinion as to the laws of any jurisdiction other than the laws of the State of New York (excluding the municipal laws or the laws, rules and regulations of any local agencies or governmental authorities of or within the State of New York), the General Corporation Law of the State of Delaware, and the federal laws of the United States of America. The opinions expressed herein are given as of the date hereof, and we undertake no obligation to supplement this letter if any applicable laws change after the date hereof or if we become aware of any facts that might change the opinions expressed herein after the date hereof or for any other reason.
This opinion is solely for the benefit of the Underwriters and may not be relied upon in any manner whatsoever by any other person or entity without our express written consent, except that Maynard, Cooper & Gale, P.C., special counsel to the Company, may rely on our opinions in paragraphs (ii) and (iii) as to matters governed by the laws of the State of New York in rendering their opinion to be delivered pursuant to the Underwriting Agreement.
Very truly yours,
EXHIBIT 4.1
SUPPLEMENTAL INDENTURE
THIS SUPPLEMENTAL INDENTURE, dated as of December 14, 2001, by and among Torchmark Corporation, a Delaware corporation (the "Company"), Bank One Trust Company, National Association (successor-in-interest to The First National Bank of Chicago), as trustee under the Indenture with respect to the series of Securities issued prior to the date hereof (the "Successor Trustee"), and The Bank of New York, a New York banking corporation, as trustee under the Indenture with respect to the Notes (defined below) (the "Additional Trustee"). Each of the Successor Trustee and the Additional Trustee, and each other trustee appointed as such with respect to the Securities of any series issued under the Indenture, shall be the "Trustee" (as defined in the Indenture, supplemented hereby) for all purposes under the Indenture with respect to the applicable series of Securities.
WITNESSETH:
WHEREAS, the Company and Morgan Guaranty Trust Company of New York entered into that certain Indenture (the "Indenture") dated as of February 1, 1987, providing for the issuance of debt securities in series by the Company; and the Successor Trustee became the successor trustee under the Indenture, effective August 8, 1994;
WHEREAS, Section 901(5) of the Indenture provides that a supplemental indenture may be entered into by the Company and the Trustee without the consent of any Holders to make provisions to establish the form or terms of Securities of any series as permitted by Sections 201 and 301 of the Indenture;
WHEREAS, the Company has furnished the Trustee with (i) an Opinion of Counsel stating that the execution of this Supplemental Indenture is authorized or permitted by the Indenture and (ii) a copy of the resolutions of its Board of Directors certified by its Secretary, pursuant to which this Supplemental Indenture has been authorized;
WHEREAS, for its lawful purposes, the Company desires to create and authorize the series 6 1/4% Senior Notes due 2006 (hereinafter referred to as the "Notes") in an initial aggregate principal amount of One Hundred Eighty Million And No/100 Dollars ($180,000,000.00) and, to provide the terms and conditions upon which the Notes are to be executed, registered, authenticated, issued and delivered, the Company has duly authorized the execution and delivery of this Supplemental Indenture;
WHEREAS, the Company has determined to appoint the Additional Trustee as a trustee under the Indenture, to serve as trustee with respect to the Notes, and to add certain additional
provisions to the Indenture to be applicable to the Notes and other securities issued under the Indenture from and after the date hereof; and
WHEREAS, all acts and things necessary to make the Notes of this series, when executed by the Company and authenticated and delivered by or on behalf of the Trustee as in this Indenture provided, the valid, binding and legal obligations of the Company, and to constitute these presents a valid indenture and agreement according to its terms, have been done and performed.
NOW, THEREFORE, in order to declare the terms and conditions upon which the Notes of this series are executed, registered, authenticated, issued and delivered, and in consideration of the premises, of the purchase and acceptance of such Notes by the Holders thereof, the Company covenants and agrees with the Trustee, for the equal and proportionate benefit of the respective Holders from time to time of such Notes, and, as to Part II hereof, all Securities or of series thereof, as follows:
PART I
CREATION AND AUTHORIZATION OF SERIES
[FORM OF NOTE]
[FACE]
[FORM OF NOTE]
GLOBAL CERTIFICATE
This 6 1/4% Senior Note due 2006 (this "Security") is a global Security within the meaning of the Indenture hereinafter referred to and is registered in the name of The Depository Trust Company (the "Depository") (55 Water Street, New York New York) or its nominee. This Security is exchangeable for Securities registered in the name of a person other than the Depository or its nominee only in the limited circumstances described in the Indenture and may not be transferred except as a whole by the Depository to a nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository.
Unless this certificate is presented by an authorized representative of the Depository to the Company (hereinafter defined) or its agent for registration of transfer, exchange, or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of the Depository (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of the Depository), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.
TORCHMARK CORPORATION
6 1/4% Senior Notes due 2006
No. ___ $______________
CUSIP NO. 891027AL8
Torchmark Corporation, a corporation duly organized and existing under the laws of the State of Delaware (herein called the "Company", which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of ___________________________ and No/100 DOLLARS ($____________) on December 15, 2006, and to pay interest thereon from December 14, 2001, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on June 15 and December 15 in each year, commencing June 15, 2002, at the rate of 6 1/4% per annum, until the principal hereof is paid or made available for payment and on any overdue principal and (to the extent that payment of such interest is enforceable under applicable law) on any overdue installment of interest at the same rate per annum during the period in which such interest remains unpaid. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record
Date for such interest, which shall be the June 1 or December 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of the series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.
Payments of interest on this Security will include interest accrued to but excluding the respective Interest Payment Dates. Interest payments for this Security shall be computed and paid on the basis of a 360-day year of twelve 30-day months. The Company shall pay interest on overdue principal and premium, if any, and, to the extent lawful, on overdue installments of interest at the rate per annum borne by this Security. In the event that any Interest Payment Date or date of Maturity is not a Business Day, then the required payment of principal, premium, if any, and interest will be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of any such delay).
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth in this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal.
TORCHMARK CORPORATION
Dated: ________________ By: ________________________
Name: ________________________
Its: ________________________
Attest:
By: ________________________
Name: ________________________
Its: ________________________
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[corporate seal]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to the within-mentioned Indenture.
THE BANK OF NEW YORK
Dated: _________________ By: _________________________ Authorized Signatory
[FORM OF NOTE]
[REVERSE]
This Security is one of a duly authorized series of Securities of the Company (herein called the "Securities"), issued or to be issued under an Indenture, dated as of February 1, 1987 (herein called the "Original Indenture"), between the Company and Bank One Trust Company, National Association (successor-in-interest to The First National Bank of Chicago), as trustee under the Indenture, as supplemented by the Supplemental Indenture dated as of December 14, 2001(together with the Original Indenture, the "Indenture"), between the Company, Bank One Trust Company, National Association and The Bank of New York, as trustee under the Indenture with respect to the Securities (herein called the "Trustee", which term includes an successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for statement of the respective rights, limitations of rights, duties, benefits and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof, limited in aggregate principal amount to _____________________ and No/100 Dollars ($____________), except as provided in the Indenture.
This Security is not subject to redemption at the option of the Company or repayment at the option of the Holder hereof prior to maturity and it not subject to any sinking fund.
The Indenture contains certain restrictive covenants and provisions for defeasance at any time of (a) the entire indebtedness evidenced by this Security and (b) such restrictive covenants, in each case upon compliance by the Company with certain conditions set forth therein, which covenants and provisions apply to this Security.
If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of 66b% in aggregate principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange thereof of in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of (and premium, if any) and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registerable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of (and premium, if any) and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable in registered form without coupons in denominations of $1,000 and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Dated: _______________________
Signature guaranteed:
By: __________________________
(Authorized Officer)
Its Medallion Number: ________
*Signature(s) must be guaranteed by an eligible guarantor institution which is a member of a recognized signature guarantee program, i.e., Securities Transfer Agents Medallion Program (STAMP), Stock Exchanges Medallion Program (SEMP), or New York Stock Exchange Medallion Signature Program (MSP).
PART II
ADDITIONAL TERMS
"Office" or "Agency" with respect to any Securities, means an office or agency of the Company maintained or designated in a Place of Payment for such Securities pursuant to Section
1002 or any other office or agency of the Company maintained or designated for such Securities pursuant to Section 1002 or, to the extent designated or required by Section 1002 in lieu of such office or agency, the Corporate Trust Office of the Trustee.
"Securities Exchange Act" means the U.S. Securities Exchange Act of 1934, as amended.
"U.S. Depository" or "Depository" means, with respect to any Security issuable or issued in the form of one or more global Securities, the Person designated as U.S. Depository or Depository by the Company in or pursuant to the Indenture, as supplemented hereby, which Person must be, to the extent required by applicable law or regulation, a clearing agency registered under the Securities Exchange Act and, if so provided with respect to any Security, any successor to such Person. If at any time there is more than one such Person, "U.S. Depository" or "Depository" shall mean, with respect to any Securities, the qualifying entity which has been appointed with respect to such Securities.
(13) the Trustee with respect to the Securities of the series;
(14) whether any Securities of the series are to be issuable in whole or in part in the form of one or more global Securities and, if so, (a) the Depository with
respect to such global Security or Securities and (b) the circumstances under which any such global Security may be exchanged for Securities registered in the name of, and any transfer of such global Security may be registered to, a Person other than such Depository or its nominee; and
Section 205. Securities in Global Form.
Unless otherwise provided in or pursuant to this Indenture or any Securities, the Securities shall not be issuable in temporary or permanent global form. If Securities of a series shall be issuable in global form, any such Security may provide that it or any number of such Securities shall represent the aggregate amount of all Outstanding Securities of such series (or such lesser amount as is permitted by the terms thereof) from time to time endorsed thereon and may also provide that the aggregate amount of Outstanding Securities represented thereby may from time to time be increased or reduced to reflect exchanges. Any endorsement of any Security in global form to reflect the amount, or any increase or decrease in the amount, or changes in the rights of Holders, of Outstanding Securities represented thereby shall be made in such manner and by such Person or Persons as shall be specified therein or in the Company Order to be delivered pursuant to Section 303 or 304 with respect thereto. Subject to the provisions of Section 303 and, if applicable, Section 304, the Trustee shall deliver and redeliver, in each case at the Company's expense, any Security in permanent global form in the manner and upon instructions given by the Person or Persons specified therein or in the applicable Company Order. If a Company Order pursuant to Section 303 or 304 has been, or simultaneously is, delivered, any instructions by the Company with respect to a Security in global form shall be in writing but need not be accompanied by or contained in an Officers' Certificate and need not be accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Section 307, unless otherwise specified in or pursuant to this Indenture or any Securities, payment of principal of, any premium and interest on, any Security in temporary or permanent global form shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in the
preceding paragraph, the Company, the Trustee and any agent of the Company or
the Trustee shall treat as the Holder of such principal amount of Outstanding
Securities represented by a global Security (i) in the case of a global Security
in registered form, the Holder of such global Security in registered form, or
(ii) in the case of a global Security in bearer form, the Person or Persons
specified pursuant to Section 301.
Notwithstanding the foregoing, except as otherwise provided in or pursuant
to this Indenture, any global Security shall be exchangeable for definitive
Securities only if (i) the Depository is at any time unwilling, unable or
ineligible to continue as depository and a successor depository is not appointed
by the Company within 90 days of the date the Company is so informed in writing,
(ii) the Company executes and delivers to the Trustee a Company Order to the
effect that such global Security shall be so exchangeable, or (iii) an Event of
Default has occurred and is continuing with respect to the Securities. If the
beneficial owners of interests in a global Security are entitled to exchange
such interests for definitive Securities as the result of an event described in
clause (i), (ii) or (iii) of the preceding sentence, then without unnecessary
delay but in any event not later than the earliest date on which such interests
may be so exchanged, the Company shall deliver to the Trustee definitive
Securities in such form and denominations as are required by or pursuant to this
Indenture, and of the same series, containing identical terms and in aggregate
principal amount equal to the principal amount of such global Security, executed
by the Company. On or after the earliest date on which such interests may be
so exchanged, such global Security shall be surrendered from time to time by the
U.S. Depository or such other Depository as shall be specified in the Company
Order with respect thereto, and in accordance with instructions given to the
Trustee and the U.S. Depository or such other Depository, as the case may be
(which instructions shall be in writing but need not be contained in or
accompanied by an Officers' Certificate or be accompanied by an Opinion of
Counsel), as shall be specified in the Company Order with respect thereto to the
Trustee, as the Company's agent for such purpose, to be exchanged, in whole or
in part, for definitive Securities as described above without charge. The
Trustee shall authenticate and make available for delivery, in exchange for each
portion of such surrendered global Security, a like aggregate principal amount
of definitive Securities of the same series of authorized denominations and of
like tenor as the portion of such global Security to be exchanged, which (unless
such Securities are not issuable both as Unregistered Securities and as
Registered Securities, in which case the definitive Securities exchanged for the
global Security shall be issuable only in the form in which the Securities are
issuable, as provided in or pursuant to this Indenture) shall be in the form of
Unregistered Securities or Registered Securities, or any combination thereof, as
shall be specified by the beneficial owner thereof, but subject to the
satisfaction of any certification or other requirements to the issuance of
Unregistered Securities; provided, however, that no such exchanges may occur
during a period beginning at the opening of business 15 days before any
selection of Securities of the same series to be redeemed and ending on the
relevant Redemption Date; and provided, further, that (unless otherwise provided
in or pursuant to this Indenture) no Unregistered Security delivered in exchange
for a portion of a global Security shall be mailed or otherwise delivered to any
location in the United States. Promptly following any such exchange in part,
such global Security shall be returned by the Trustee to such Depository or the
U.S. Depository, as the case may be, or such other Depository or U.S. Depository
referred to above in accordance with the instructions of the Company referred to
above. If a Registered Security is issued in exchange for any portion of a
global Security after the close of business at the Office or Agency for such
Security where such exchange occurs on or after (i) any Regular Record Date for
such Security and before the opening of business at such Office or Agency on the
next succeeding Interest Payment Date, or (ii) any Special Record Date for such
Security and before the opening of business at such Office or Agency on the
related proposed date for payment of interest or Defaulted Interest, as the case
may be, interest shall not be payable on such Interest Payment Date or proposed
date for payment, as the case may be, in respect of such Registered Security,
but shall be payable on such Interest Payment Date or proposed date for
payment, as the case may be, only to the Person to whom interest in respect of such portion of such global Security shall be payable in accordance with the provisions of this Indenture.
No Holder of any beneficial interest in any global Security held on its behalf by a Depository shall have any rights under this Indenture with respect to such global Security, and such Depository may be treated by the Company, the Trustee, and any agent of the Company or the Trustee as the owner of such global Security for all purposes whatsoever. None of the Company, the Trustee, any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
The term "Designated Subsidiary" means each of Liberty National Life Insurance Company, United American Insurance Company, Globe Life and Accident Insurance Company, United Investors Life Insurance Company and American Income Life Insurance Company, so long as it remains a Subsidiary, or any Subsidiary that is a successor of such Designated Subsidiary, as well as any other Subsidiary of the Company that would be deemed a Significant Subsidiary, as such term is defined in Regulation S-X promulgated by the Commission.
PART III
APPOINTMENT OF ADDITIONAL TRUSTEE
PART IV
MISCELLANEOUS PROVISIONS
The Indenture, this Supplemental Indenture and the Notes shall be governed by and construed in accordance with the laws of the State of New York, without regard to principles of conflicts of law.
The Trustees make no undertaking or representations in respect of, and shall not be responsible in any manner whatsoever for and in respect of, the validity or sufficiency of this Supplemental Indenture or the proper authorization or the due execution hereof by the Company or for or in respect of the recitals and statements contained herein, all of which recitals and statements are made solely by the Company.
Except as expressly amended hereby, the Indenture shall continue in full force and effect in accordance with the provisions thereof and the Indenture is in all respects hereby ratified and confirmed. This Supplemental Indenture and all its provisions shall be deemed a part of the Indenture in the manner and to the extent herein and therein provided.
This Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, Torchmark Corporation has caused this Supplemental Indenture to be signed and delivered, and the Successor Trustee and the Additional Trustee have caused this Supplemental Indenture to be signed and delivered, all as of the day and year first written above.
TORCHMARK CORPORATION
By: /s/ Michael J. Klyce
-----------------------------------
Name: Michael J. Klyce
----------------------------
Title: Vice President and Treasurer
----------------------------
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BANK ONE TRUST COMPANY,
NATIONAL ASSOCIATION
By: /s/ Benita A. Pointer
-----------------------------------
Name: Benita A. Pointer
----------------------------
Title: Account Executive
----------------------------
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THE BANK OF NEW YORK
By: /s/ Robert A. Massimillo
------------------------------------
Name: Robert A. Massimillo
----------------------------
Title: Vice President
----------------------------
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EXHIBIT 12.1
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
(Dollar amounts in thousands)
For the nine
months ended
September 30,
1996 1997 1998 1999 2000 2001
---------- ----------- --------- -------- --------- ---------------
Earnings:
Pre-tax earnings $387,492 $391,999 $446,991 $402,408 $562,958 $471,669
Fixed charges and
MIPS dividends 91,056 89,843 74,753 67,500 71,144 42,562
Less: interest
capitalized included
above (1,361) (1,663) (2,437) (284) 0 0
-------- -------- -------- -------- -------- --------
Earnings before fixed
charges $477,187 $480,179 $519,307 $469,624 $634,102 $514,231
======== ======== ======== ======== ======== ========
Fixed charges and MIPS
dividends:
Interest expense $ 73,611 $ 71,863 $ 56,325 $ 52,341 $ 54,487 $ 34,749
Capitalization interest 1,361 1,663 2,437 284 0 0
Adjusted MIPS dividends 15,036 15,265 14,933 13,746 15,558 7,012
Estimated interest factor
of rental expense 1,048 1,052 1,058 1,129 1,099 801
-------- -------- -------- -------- -------- --------
Total fixed charges $ 91,056 $ 89,843 $ 74,753 $ 67,500 $ 71,144 $ 42,562
======== ======== ======== ======== ======== ========
Ratio of earnings to
fixed charges and
MIPS dividends 5.2 5.3 6.9 7.0 8.9 12.1
======== ======== ======== ======== ======== ========
Earnings before fixed
charges $477,187 $480,179 $519,307 $469,624 $634,102 $514,231
Interest credited for
deposit products 94,900 98,563 86,561 74,021 76,937 58,223
-------- --------- -------- -------- -------- --------
Adjusted earnings
before fixed charges $572,087 $578,742 $605,868 $543,645 $711,039 $572,454
======== ======== ======== ======== ======== ========
Fixed charges $ 91,056 $ 89,843 $ 74,753 $ 67,500 $ 71,144 $ 42,562
Interest credited for
deposit products 94,900 98,563 86,561 74,021 76,937 58,223
-------- -------- -------- -------- -------- --------
Adjusted fixed charges $185,956 $188,406 $161,314 $141,521 $148,081 $100,785
======== ======== ======== ======== ======== ========
Ratio of earnings to
fixed charges and MIPS
dividends including
interest credited on
deposit products as a
fixed charge 3.1 3.1 3.8 3.8 4.8 5.7
======== ======== ======== ======== ======== ========
Rental expense $ 3,177 $ 3,189 $ 3,206 $ 3,422 $ 3,329 $ 2,426
Estimated interest factor
of rental expense (33%) 1,048 1,052 1,058 1,129 1,099 801
Interest credited on
deposit products 94,900 98,563 86,561 74,021 76,937 58,223
MIPS dividends 9,655 9,875 9,777 9,158 10,284 4,609
Tax rate 35.8% 35.3% 34.5% 33.4% 33.9% 34.3%
Adjusted (pretax) MIPS
dividends 15,036 15,265 14,933 13,746 15,558 7,012
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PRO FORMA COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
(Dollar amounts in thousands)
Nine months
Year ended ended
December 31, September 30,
2000 2001
------------ -------------
Earnings:
Pre-tax earnings $562,958 $471,669
Fixed charges
and MIPS dividends 61,812 38,930
-------- --------
Earnings before fixed charges $624,770 $510,599
======== ========
Fixed charges and MIPS dividends:
Interest expense $ 52,463 $ 31,945
Adjusted MIPS/TPS dividends 8,250 6,184
Estimated interest factor of
rental expense 1,099 801
-------- --------
Total fixed charges $ 61,812 $ 38,930
======== ========
Ratio of earnings to fixed charges
and MIPS dividends 10.1 13.1
======== ========
Earnings before fixed charges $624,770 $510,599
Interest credited for deposit products 76,937 58,223
-------- --------
Adjusted earnings before fixed charges $701,707 $568,822
======== ========
Fixed charges $ 61,812 $ 38,930
Interest credited for deposit products 76,937 58,223
-------- --------
Adjusted fixed charges $138,749 $ 97,153
======== ========
Ratio of earnings to fixed charges
and MIPS dividends
including interest credited on deposit
products as a fixed charge 5.1 5.9
======== ========
Rental expense $ 3,329 $ 2,426
Estimated interest factor
of rental expense (33%) 1,099 801
Interest credited on deposit products 76,937 58,223
MIPS dividends 0 0
TPS 1 dividends 4,544 3,388
TPS 2 dividends 909 677
Tax rate 33.9% 34.3%
Adjusted (pretax) MIPS dividends 8,250 6,184
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EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement No. 333-83411 of Torchmark Corporation on Form S-3 of our report dated January 30, 2001, appearing in the Annual Report on Form 10-K of Torchmark Corporation for the year ended December 31, 2000, and to the reference to us under the heading "Experts" in the Prospectus Supplement dated December 11, 2001, which is part of such Registration Statement.
/s/ DELOITTE & TOUCHE LLP ----------------------------- DELOITTE & TOUCHE LLP Dallas, Texas December 11, 2001 |
EXHIBIT 23.2
Consent of Independent Certified Public Accountants
The Board of Directors
Torchmark Corporation:
We consent to incorporation by reference in the Registration Statement on Form S-3 dated December 11, 2001, of our report dated January 29, 1999, except for note 18 which is as of February 10, 1999 relating to the consolidated statements of operations, comprehensive income, shareholders' equity, and cash flows and related schedules of Torchmark Corporation and Subsidiaries for the year ended December 31, 1998, which appears in the December 31, 2000 Annual Report on Form 10-K of Torchmark Corporation and to the reference of our firm under the heading "Experts" in the prospectus.
/s/ KPMG LLP
Birmingham, Alabama
December 11, 2001
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