EXHIBIT 1
UNUMPROVIDENT CORPORATION
UNDERWRITING AGREEMENT
June 13, 2002
Goldman, Sachs & Co.
J. P. Morgan Securities Inc.
Morgan Stanley & Co. Incorporated
c/o Morgan Stanley & Co. Incorporated
As Representatives of the Several Underwriters
named in Schedule I to
Annex I hereto,
1585 Broadway
New York, New York 10036
Dear Ladies and Gentlemen:
From time to time UnumProvident Corporation, a Delaware corporation (the “Company”), proposes to enter into one or more Pricing Agreements (each a “Pricing Agreement”) in the form of Annex I hereto, with such
additions and deletions as the parties thereto may determine, and, subject to the terms and conditions stated herein and therein, to issue and sell to the firms named in Schedule I to the applicable Pricing Agreement (such firms constituting the
“Underwriters” with respect to such Pricing Agreement and the securities specified therein) certain of its debt securities (the “Securities”) specified in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the “Firm Securities” and together with any Optional Securities, as defined below, the “Designated Securities”), less the principal amount of Designated Securities covered by Delayed Delivery Contracts, if any, as
provided in Section 3 hereof and as may be specified in Schedule II to such Pricing Agreement (with respect to such Pricing Agreement, any Designated Securities to be covered by Delayed Delivery Contracts being herein sometimes referred to as
“Contract Securities” and the Designated Securities to be purchased by the Underwriters (after giving effect to the deduction, if any, for Contract Securities) being herein sometimes referred to as “Underwriters’
Securities”).
The terms and rights of any particular issuance of Designated Securities shall be as specified
in the Pricing Agreement relating thereto and in or pursuant to the indenture (the “Indenture”) identified in such Pricing Agreement.
1. Particular sales of Designated Securities may be made from time to time to the Underwriters of such Securities, for whom the firms designated as representatives of the Underwriters of
such Securities in the Pricing Agreement relating thereto will act as representatives (the “Representatives”). The term “Representatives” also refers to a single firm acting as sole representative of the Underwriters and to
Underwriters who act without any firm being designated as their representative. This Underwriting Agreement shall not be construed as an obligation of the Company to sell any of the Securities or as an obligation of any of the Underwriters to
purchase the Securities. The obligation of the Company to issue and sell any of the Securities and the obligation of any of the Underwriters to purchase any of the Securities shall be evidenced by the Pricing Agreement with respect to the Designated
Securities specified therein. Each Pricing Agreement with respect to Designated Securities shall be substantially in the form attached hereto as Annex I and shall specify the names of the Underwriters of such Designated Securities, the names of the
Representatives, if any, of such Underwriters, the principal amount of Firm Securities and the principal amount of Optional Securities, if any, to be purchased by each Underwriter and the commission, if any, payable to the Underwriter with respect
thereto, whether any of such Designated Securities shall be covered by Delayed Delivery Contracts (as defined in Section 3 hereof), the purchase price to the Underwriters of such Designated
Securities, the nature of the funds to be delivered by the Underwriters, the initial public offering price or the manner of determining such price, if any, including, interest rates, if any,
maturity, whether such Securities will be convertible at the option of the holder thereof, any conversion rates or price(s), whether warrants shall be attached to such Debt Securities, any redemption provisions and any sinking fund requirements. A
Pricing Agreement shall be in the form of an executed writing (which may be in counterparts, and may be evidenced by an exchange of telegraphic communications or any other rapid transmission device designed to produce a written record of
communications transmitted). The obligations of the Underwriters under this Agreement and each Pricing Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the Underwriters that:
(a) A registration statement on Form S-3 (No. 333-43808), in respect of the Securities has been filed with the Securities and Exchange Commission (the
“Commission”); such registration statement and any post–effective amendment thereto, in the form heretofore delivered or to be delivered to the Representatives for each of the other Underwriters and, excluding exhibits to such
registration statement, but including all documents incorporated by reference in the prospectus contained therein, has been declared effective by the Commission in such form; other than a registration statement, if any, increasing the size of the
offering (a “Rule 462(b) Registration Statement”), filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the “Act”), which became effective upon filing, no other document with respect to such registration
statement or document incorporated by reference therein has heretofore been filed or transmitted for filing with the Commission; and no stop order suspending the effectiveness of such registration statement, any post-effective amendment thereto, or
the Rule 462(b) Registration Statement, if any, has been issued and no proceeding for that purpose has been initiated or threatened by the Commission. Any preliminary prospectus included in such registration statement or filed with the Commission
pursuant to Rule 424(a) or 424(b) of the rules and regulations of the Commission under the Act, is hereinafter called a “Preliminary Prospectus;” the various parts of such registration statement and the Rule 462(b) Registration Statement,
if any, including all exhibits thereto and the documents incorporated by reference in the prospectus contained in such registration statement and the Rule 462(b) Registration Statement, if any, at the time such part of such registration statement or
such part of the Rule 462(b) Registration Statement, if any, became or hereafter becomes effective but excluding Form T-1, as amended at the time such part of the registration statement or such part of the Rule 462(b) Registration Statement, if any,
became effective and at the time each incorporated document was filed with the Commission is hereinafter called the “Registration Statement;” the prospectus relating to the Securities, in the form in which it has most recently been filed,
or transmitted for filing, with the Commission on or prior to the date of this Agreement, including any prospectus supplement thereto, is hereinafter called the “Prospectus;” any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to the applicable form under the Act, as of the date of such Preliminary Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the “Exchange Act”), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; any reference to any amendment to the Registration Statement shall be deemed to refer to and include any
annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the Registration Statement
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that is incorporated by reference in the Registration Statement; and any reference to the Prospectus as amended or
supplemented shall be deemed to refer to the Prospectus as amended or supplemented in relation to the applicable Designated Securities in the form in which it is filed with the Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof, including any documents incorporated by reference therein as of the date of such filing;
(b) The documents incorporated by reference in the Prospectus, when they became effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, and none of such documents contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and any further documents so filed and incorporated by reference in the Prospectus or any further amendment or
supplement thereto, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such Securities;
(c) The
Registration Statement and the Prospectus conform, and any further amendments or supplements to the Registration Statement or the Prospectus will conform, in all material respects to the requirements of the Act and the Trust Indenture Act of 1939,
as amended (the “Trust Indenture Act”) and the rules and regulations of the Commission thereunder and do not and will not, as of the applicable effective date as to the Registration Statement and any amendment thereto and as of the
applicable filing date as to the Prospectus and any amendment or supplement thereto, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (i) in the
case of the Registration Statement, not misleading and (ii) in the case of the Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter of Designated Securities through the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities;
(d) Neither the Company nor any of its subsidiaries
listed on Appendix A hereto, which Appendix contains an accurate and complete list of those subsidiaries of the Company that constitute “significant subsidiaries” of the Company within the meaning of Regulation S-X under the Securities Act
as of the date of this Agreement, (each a “Significant Subsidiary,” and collectively, the “Significant Subsidiaries,”) has sustained since the date of the latest audited financial statements included or incorporated by reference
in the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as
set forth or contemplated in the Prospectus; and, since the respective dates as of which information is given or incorporated by reference in the Registration Statement
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and the Prospectus, there has not been any material change in the capital stock
or long-term debt of the Company or any of its Significant Subsidiaries or any material adverse change, or any development that could be reasonably expected to cause a prospective material adverse change, in or affecting the general affairs,
management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries considered as a whole, otherwise than as set forth or contemplated in the Prospectus;
(e) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and
is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, except for any jurisdiction where failure to so qualify will not have a material
adverse effect or be reasonably expected to cause a prospective material adverse effect on the Company and its subsidiaries taken as a whole; and each Significant Subsidiary of the Company has been duly organized and is validly existing as a
corporation in good standing under the laws of its jurisdiction of incorporation;
(f) The Company
has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and nonassessable;
(g) The Firm Securities and any Optional Securities have been duly and validly authorized, and, when the Firm Securities
are issued and delivered pursuant to this Agreement, and the Pricing Agreement with respect to such Designated Securities and, in the case of any Contract Securities, pursuant to Delayed Delivery Contracts (as defined in Section 3 hereof) with
respect to such Contract Securities, and in the case of any Optional Securities pursuant to Over-allotment Options (as defined in Section 3 hereof) with respect to such Securities, such Designated Securities will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors’ rights and to general equity principles and entitled to the benefits provided by the Indenture, which will be substantially in the form filed as an exhibit to the Registration Statement; the
Indenture has been duly authorized and duly qualified under the Trust Indenture Act and, at the Time of Delivery for such Designated Securities (as defined in Section 4 hereof), the Indenture will constitute a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles; and the
indenture conforms, and the Designated Securities will conform in all material respects, to the descriptions thereof contained in the Prospectus as amended or supplemented with respect to such Designated Securities;
(h) The issue and sale of the Securities and the compliance by the Company with all of the provisions of the Securities,
the Indenture, each of the Delayed Delivery Contracts, this Agreement and any Pricing Agreement and each Over-allotment Option, if any, and the consummation of the transactions herein and therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company is a party or by which the Company is bound or to
which any of the
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property or assets of the Company is subject, except for such conflicts, breaches
and violations, that, individually or in the aggregate, do not have a material adverse effect and are not reasonably expected to have a prospective material adverse effect on the Company and its subsidiaries considered as a whole, nor will such
action result in any violation of the provisions of the Certificate of Incorporation or By-Laws of the Company or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of
its properties; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Securities or the consummation by the Company of the
transactions contemplated by this Agreement or any Pricing Agreement or any Over-allotment Option, or the Indenture or any Delayed Delivery Contract except such as have been, or will have been prior to the Time of Delivery, obtained under the Act
and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities;
(i) Other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which
the Company or any of its Significant Subsidiaries is a party or of which any property of the Company or any of its Significant Subsidiaries is the subject which, if determined adversely to the Company or any of its Significant Subsidiaries, would
individually or in the aggregate have a material adverse effect on the consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries considered as a whole; and, to the best of the
Company’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(j) Ernst & Young LLP, who have audited certain financial statements of the Company and its subsidiaries, are independent public accountants as required by the Act and the rules and regulations of
the Commission thereunder;
(k) The Company and its subsidiaries which are engaged in the
insurance business are, in all material respects, in compliance with, and conduct, in all material respects, their respective businesses in conformity with, all applicable insurance laws and regulations; and no order preventing or suspending the use
of the Prospectus or any Preliminary Prospectus has been issued or threatened by any insurance regulatory authority having jurisdiction over the Company and such subsidiaries;
(l) This Agreement has been duly authorized, executed and delivered by the Company and the Pricing Agreement when executed will have been duly authorized,
executed and delivered by the Company; and
(m) In the event any of the Securities are purchased
pursuant to Delayed Delivery Contracts, each of such Delayed Delivery Contracts has been duly authorized by the Company and, when executed and delivered by the Company and the purchaser named therein, will constitute a valid and legally binding
agreement of the Company enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity
principles; and any Delayed Delivery Contracts conform to the description thereof in the Prospectus.
3. Upon the execution of the Pricing Agreement applicable to any Designated Securities and authorization by the Representatives of the release of such Firm
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Securities, the several Underwriters propose to offer such Firm Securities for sale upon the terms and conditions set forth in the Prospectus as
amended or supplemented.
The Company may specify in the Pricing Agreement applicable to any Designated Securities
that the Company thereby grants to the Underwriters the right (an “Over-allotment Option”) to purchase at their election up to the aggregate principal amount of Optional Securities set forth in such Pricing Agreement, at the terms set
forth in the paragraph above, for the sole purpose of covering over-allotments in the sale of the Firm Securities. Any such election to purchase Optional Securities may be exercised only by written notice from the Representatives to the Company,
given within a period specified in the Pricing Agreement, setting forth the aggregate principal amount of Optional Securities to be purchased and the date on which such Optional Securities are to be delivered, as determined by the Representatives
but in no event earlier than the First Time of Delivery (as defined in Section 4 hereof) or, unless the Representatives and the Company otherwise agree in writing, earlier than or later than the respective number of business days after the date of
such notice set forth in such Pricing Agreement.
The aggregate principal amount of Optional Securities to be
added to the number of Firm Securities to be purchased by each Underwriter as set forth in Schedule I to the Pricing Agreement applicable to such Designated Securities shall be, in each case, the aggregate principal amount of Optional Securities
which the Company has been advised by the Representatives have been attributed to such Underwriter, provided that, if the Company has not been so advised, the aggregate principal amount of Optional Securities to be so added shall be, in each case,
that proportion of Optional Securities which the aggregate principal amount of Firm Securities to be purchased by such Underwriter under such Pricing Agreement bears to the aggregate principal amount of Firm Securities. The total aggregate principal
amount of Designated Securities to be purchased by all the Underwriters pursuant to such Pricing Agreement shall be the aggregate principal amount of Firm Securities set forth in Schedule I to such Pricing Agreement plus the aggregate number of the
Optional Securities which the Underwriters elect to purchase.
The Company may specify in Schedule II to the
Pricing Agreement applicable to any Designated Securities that the Underwriters are authorized to solicit offers to purchase Designated Securities from the Company pursuant to delayed delivery contracts (herein called “Delayed Delivery
Contracts”), substantially in the form of Annex III attached hereto but with such changes therein as the Representatives and the Company may authorize or approve. If so specified, the Underwriters will endeavor to make such arrangements, and as
compensation therefor the Company will pay to the Representatives, for the accounts of the Underwriters, at the Time of Delivery (as defined in Section 4 hereof), such commission, if any, as may be set forth in such Pricing Agreement. Delayed
Delivery Contracts, if any, are to be with investors of the types described in the Prospectus and subject to other conditions therein set forth. The Underwriters will not have any responsibility with respect to the validity or performance of any
Delayed Delivery Contracts.
The aggregate principal amount of Contract Securities to be deducted from the
aggregate principal amount of Designated Securities to be purchased by each Underwriter as set forth in Schedule I to the Pricing Agreement applicable to such Designated Securities shall be, in each case, the aggregate principal amount of Contract
Securities which the Company has been advised by the Representatives have been attributed to such Underwriter, provided that, if the Company has not been so advised, the amount of Contract Securities to be so deducted shall be, in each case, that
proportion of Contract Securities which the aggregate principal amount of Designated Securities to be purchased by such Underwriter under such Pricing Agreement bears to the aggregate principal amount of the Designated Securities (rounded as the
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Representatives may determine). The aggregate principal amount of Underwriters’ Securities to be purchased by all the Underwriters pursuant
to such Pricing Agreement shall be the aggregate principal amount of Designated Securities set forth in Schedule I to such Pricing Agreement less the principal amount of the Contract Securities. The Company will deliver to the Representatives not
later than 3:30 p.m., New York City time, on the third business day preceding the Time of Delivery specified in the applicable Pricing Agreement (or such other time and date as the Representatives and the Company may agree upon in writing) a written
notice setting forth the aggregate principal amount of Contract Securities.
4. Delivery of the Firm
Securities and the Optional Securities, if any, to be purchased by each Underwriter pursuant to the Pricing Agreement relating thereto, shall be made through the facilities of the Depository Trust Company unless the Representatives shall otherwise
instruct. Any Designated Securities issued in definitive form shall be made in such authorized denominations and registered in such names as the Representatives may request upon at least forty-eight hours’ prior notice to the Company.
Regardless of the method of delivery, any Designated Securities to be purchased by the Underwriters pursuant to the Pricing Agreement relating thereto shall be delivered by or on behalf of the Company to the Representatives for the account of such
Underwriter, against payment by such Underwriter or on its behalf of the purchase price therefor by the method specified in such Pricing Agreement, (i) with respect to the Firm Securities, all at the place and time and date specified in such Pricing
Agreement or at such other place and time and date as the Representatives and the Company may agree upon in writing, such time and date being herein called the “First Time of Delivery” and (ii) with respect to the Optional Securities, if
any, on the time and date specified by the Representatives in the written notice given by the Representatives of the Underwriters’ election to purchase such Optional Securities, or at such other time and date as the Representatives and the
Company may agree upon in writing, such time and date, if not the First Time of Delivery, herein called the “Second Time of Delivery.” Each such time and date for delivery is herein called a “Time of Delivery.” “New York
Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday, and Friday which is not a day on which banking institutions in New York are generally authorized or obligated by law or executive order to close.
Concurrently with the delivery of and payment for the Underwriters’ Securities, the Company will deliver to the Representatives for
the accounts of the Underwriters funds payable to the order of the party designated, and in the method specified, in the Pricing Agreement relating to such Securities in the amount of any compensation payable by the Company to the Underwriters in
respect of any Delayed Delivery Contracts as provided in Section 3 hereof and the Pricing Agreement relating to such Securities.
5. The Company agrees with each of the Underwriters of any Designated Securities:
(a) To prepare the Prospectus as amended and supplemented in relation to the applicable Designated Securities in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Act not later than
the Commission’s close of business on the second business day following the execution and delivery of the Pricing Agreement relating to the applicable Designated Securities or, if applicable, such earlier time as may be required by Rule 424(b);
to make no further amendment or any supplement to the Registration Statement or Prospectus as amended or supplemented after the date of the Pricing Agreement relating to such Securities and prior to the Time of Delivery for such Securities which
amendment or supplement shall be disapproved by the Representatives for such Securities promptly after reasonable notice thereof; to advise the Representatives promptly of any such amendment or supplement after such Time of Delivery and furnish the
Representatives with copies thereof; to file promptly all reports and
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any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of a prospectus is required in connection with the offering or sale of such Securities, and during such same same period to advise the Representatives, promptly after
it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or suspending the use of any prospectus relating to the Securities, of the suspension of the qualification of such Securities for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any such stop
order or of any such order preventing or suspending the use of any prospectus relating to the Securities or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the Representatives may reasonably request to qualify such
Securities for offering and sale under the securities laws of such jurisdictions as the Representatives may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may
be necessary to complete the distribution of such Securities, provided that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 A.M., New York City time, or as soon as practicable thereafter, on the New
York Business Day next succeeding the date of this Agreement, and thereafter, to furnish the Underwriters with copies of the Prospectus as amended or supplemented in such quantities as the Representatives may from time to time reasonably request,
and, if the delivery of a prospectus is required at any time in connection with the offering or sale of the Securities and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or,
if for any other reason it shall be necessary during such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Act, the Exchange Act
or the Trust Indenture Act, to notify the Representatives and upon their request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time
to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;
(d) To make generally available to its security holders as soon as practicable, but in any event not later than eighteen months after the effective date of
the Registration Statement (as defined in Rule 158(c)), an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158);
(e) During the period beginning from the
date hereof and continuing to and including the earlier of (i) the termination of trading restrictions for such Designated Securities and (ii) the Time of Delivery for such Designated Securities, not to offer, sell, contract to sell or
otherwise dispose of any
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securities of the Company (other than pursuant to employee stock option plans existing, or on the conversion or exchange
of convertible or exchangeable securities outstanding on the date of the Pricing Agreement) which are substantially similar to the Designated Securities and which mature more than one year after the related Time of Delivery, without your prior
written consent; and
(f) If the Company elects to rely upon Rule 462(b), the Company shall file a
Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for
the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act.
6. The Company covenants and agrees with the several Underwriters that the Company will pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Company’s counsel and accountants
in connection with the registration of the Securities under the Act and all other expenses in connection with the preparation, printing and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers; (ii) the cost of printing or producing any Agreement among Underwriters, this Agreement, any Pricing Agreement, any Indenture, any Warrant
Agreement, any Delayed Delivery Contracts, and Blue Sky and Legal Investment Memoranda and any other documents in connection with the offering, purchase, sale and delivery of the Securities; (iii) all expenses in connection with the qualification of
the Securities for offering and sale under state securities laws as provided in Section 5(b) hereof, including the fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky and
legal investment surveys; (iv) any fees charged by securities rating services for rating the Securities; (v) any filing fees incident to any required review by the National Association of Securities Dealers, Inc. of the terms of the sale of the
Securities; (vi) the cost of preparing the Securities; (vii) the fees and expenses of any Trustee, any Warrant Agent, any Registrar, any Transfer Agent, Dividend Disbursing Agent, or any Calculation Agent and any agent of any Trustee, Warrant Agent,
Registrar, Transfer Agent, Dividend Disbursing Agent, or Calculation Agent and the fees and disbursements of counsel for any such persons in connection with any Indenture, any Warrant Agent Agreement, any Calculation Agent Agreement and the
Securities; and (viii) all other costs and expenses incident to the performance of the Company’s obligations hereunder and under any Over-allotment Options and under any Delayed Delivery Contracts which are not otherwise specifically provided
for in this Section. It is understood, however, that, except as provided in this Section, Section 8 and Section 11 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, transfer taxes on resale
of any of the Securities by them, and any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities under the Pricing Agreement relating to such Designated Securities shall be subject, in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or incorporated by reference in the Pricing Agreement relating to such Designated Securities are, at and as of each Time of Delivery for such Designated Securities, true and
correct, the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the applicable Designated Securities shall have been filed with the Commission pursuant to Rule
424(b) within the applicable time period prescribed for such filing by the rules
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and regulations under the Act and in accordance with Section 5(a) hereof; if the Company has elected to rely upon Rule
462(b), the Rule 462(b) Registration Statement shall have become effective by 10:00 P.M., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the Representatives’ reasonable
satisfaction;
(b) Sullivan & Cromwell, counsel for the Underwriters, shall have furnished to
the Representatives such opinion or opinions, dated each Time of Delivery for such Designated Securities, with respect to the incorporation of the Company, the validity of the Indenture, the Designated Securities, the Delayed Delivery Contracts, if
any, the Registration Statement, the Prospectus as amended or supplemented and other related matters as the Representatives may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) F. Dean Copeland, General Counsel of the Company,
shall have furnished to the Representatives his written opinion, dated each Time of Delivery for such Designated Securities, in form and substance satisfactory to the Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with corporate power and authority to own its properties and conduct its business as described in the Prospectus as amended or supplemented;
(ii) The Company has an authorized capitalization as set forth in the Prospectus as amended or supplemented and all of the issued shares of capital stock of
the Company have been duly and validly authorized and issued and are fully paid and nonassessable;
(iii) The Company is qualified to do business, and is in good standing, as a foreign corporation under the laws of each jurisdiction in which the business conducted by it requires such qualification or, if not so qualified and in
good standing in any such jurisdiction, such failure to be so qualified and in good standing, as of the date of the opinion will not have a material adverse effect and would not be reasonably expected to cause a prospective material adverse effect
on the Company and its subsidiaries taken as a whole;
(iv) Each Significant Subsidiary of the
Company has been duly organized, and is subsisting and in good standing as a corporation under the laws of its jurisdiction of incorporation, and all of the issued shares of capital stock of each such subsidiary have been duly and validly authorized
and issued, are fully paid and nonassessable, and, to the best knowledge of such counsel, are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To the best of such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which, if determined adversely to the Company or any of its subsidiaries,
10
would individually or in the aggregate have a material adverse effect on the
consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries; and, to the best of such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(vi) This Agreement and the Pricing Agreement with respect
to the Designated Securities have been duly authorized, executed and delivered by the Company;
(vii) The Designated Securities have been duly authorized, by requisite corporate action on the part of the Company, and the Designated Securities, when executed and authenticated in accordance with the terms of the Indenture and
delivered to and paid for by the Underwriters in accordance with the terms of the Underwriting Agreement, will be valid and binding obligations of the Company entitled to the benefit of the Indenture and enforceable against the Company in accordance
with their terms, except to the extent that the enforcement thereof may be limited by (1) bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other similar laws now or hereafter in effect relating to or affecting
creditors’ rights generally, (2) general principles of equity (regardless of whether enforcement is considered in a proceeding at law or equity), (3) requirements that a claim with respect to any Debt Securities denominated other than in United
States dollars (or a judgment denominated other than in United States dollars in respect of such claim) be converted into United States dollars at a rate of exchange prevailing on a date determined pursuant to applicable law, and (4) governmental
authority to limit, delay or prohibit the making of payments outside the United States or in foreign currencies or composite currencies or currency units; and the Designated Securities conform in all material respects to the description thereof
contained in the Registration Statement and Prospectus as amended or supplemented with respect to such Designated Securities;
(viii) The Indenture has been duly authorized, executed and delivered by the Company and constitutes a valid and binding agreement, enforceable against the Company in accordance with its terms, except
to the extent that the enforcement thereof may be limited by (1) bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally, (2) general
principles of equity (regardless of whether enforcement is considered in a proceeding at law or equity), (3) requirements that a claim with respect to any Debt Securities denominated other than in United States dollars (or a judgment denominated
other than in United States dollars in respect of such claim) be converted into United States dollars at a rate of exchange prevailing on a date determined pursuant to applicable law, and (4) governmental authority to limit, delay or prohibit the
making of payments outside the United States or in foreign currencies or composite currencies or currency units; and the Indenture has been duly qualified under the Trust Indenture Act;
The Contract Securities when authenticated, executed, issued and delivered pursuant to the Indenture and the Delayed Delivery Contracts and paid for in
accordance with the Delayed Delivery Contracts will constitute valid and binding obligations of the Company entitled to the benefits provided by the Indenture and enforceable in accordance with their terms, except to the extent that enforcement
thereof may be limited by (1) bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium and
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other similar laws now or hereafter in effect relating to or affecting
creditors’ rights generally, (2) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity), (3) requirements that a claim with respect to any Debt Securities denominated other
than in United States dollars (or a judgment denominated other than in United States dollars in respect of such claim) be converted into United States dollars at a rate of exchange prevailing on a date determined pursuant to applicable law, and (4)
governmental authority to limit, delay or prohibit the making of payments outside the United States or in foreign currencies or composite currencies or currency units; and the Contract Securities and the Indenture conform in all material respects to
the descriptions thereof in the Registration Statement and Prospectus as amended or supplemented relating to the Designated Securities;
(ix) The issue and sale of the Designated Securities and the compliance by the Company with all of the provisions of the Designated Securities, the Indenture, the Warrant Agreement, each of the Delayed
Delivery Contracts, if any, any Over-allotment Options, this Agreement and the Pricing Agreement with respect to the Designated Securities and the consummation of the transactions herein and therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company is a party or by which the
Company is bound or to which any of the property or assets of the Company is subject, except for such conflicts, breaches and violations, that do not, individually or in the aggregate, have a material adverse effect and are not reasonably expected
to have a prospective material adverse effect on the Company and its subsidiaries considered as a whole, nor will such actions result in any violation of the provisions of the Certificate of Incorporation or By-Laws of the Company or any statute or
any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its properties;
(x) No consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the
issue and sale of the Designated Securities or the consummation by the Company of the transactions contemplated by this Agreement or such Pricing Agreement or the Indenture or any of such Delayed Delivery Contracts or any Over-allotment Options,
except such as have been obtained under the Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and
distribution of the Designated Securities by the Underwriters;
(xi) The documents incorporated by
reference in the Prospectus as amended or supplemented (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case
may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and he has no reason to believe that any of such documents, when
they became effective or were so filed, as the case may be, contained, in the case of a registration statement which became effective under the Act, an untrue statement of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or, in the case of other documents which were filed under the Act or the Exchange Act with the Commission, an untrue statement of a material
12
fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such documents were so filed, not misleading;
(xii)
The Registration Statement and the Prospectus as amended or supplemented and any further amendments and supplements thereto made by the Company prior to the Time of Delivery for the Designated Securities (other than the financial statements and
related schedules therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the Trust Indenture Act and the rules and regulations thereunder; and
(xiii) In the event any of the Designated Securities are to be purchased pursuant to Delayed Delivery
Contracts, each of such Delayed Delivery Contracts has been duly authorized, executed and delivered by the Company and, assuming such Delayed Delivery Contracts have been duly authorized, executed and delivered by the purchaser named therein,
constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except to the extent that enforcement thereof may be limited by (1) bankruptcy, insolvency, reorganization, fraudulent transfer,
moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally, (2) general principles of equity (regardless of whether enforcement is considered in a proceeding at law or in equity), (3) requirements that a
claim with respect to any Debt Securities denominated other than in United States dollars (or a judgment denominated other than in United States dollars in respect of such claim) be converted into United States dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law, and (4) governmental authority to limit, delay or prohibit the making of payments outside the United States or in foreign currencies or composite currencies or currency units; and any
Delayed Delivery Contracts conform in all material respects to the description thereof in the Registration Statement and Prospectus as amended or supplemented.
In addition, such counsel shall state that he has no reason to believe that, as of its effective date, the Registration Statement or any further amendment thereto made by the Company prior to such Time
of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact, in each case, solely with respect
to information of or about the Company, required to be stated therein or necessary to make the statements therein not misleading or that, as of its date, the Prospectus as amended or supplemented or any further amendment or supplement thereto made
by the Company prior to such Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact,
in each case, solely with respect to information of or about the Company, necessary to make the statements therein, in light of the circumstances in which they were made, not misleading or that, as of such Time of Delivery, either the Registration
Statement or the Prospectus as amended or supplemented or any further amendment or supplement thereto made by the Company prior to such Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel
need express no opinion) contains an untrue statement of a material fact or omits to state a material fact, in each case, solely with respect to information of or about the Company, necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading; and he shall state that he does not know of any amendment to the Registration Statement
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required to be filed or any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the
Prospectus as amended or supplemented or required to be described in the Registration Statement or the Prospectus as amended or supplemented which are not filed or incorporated by reference or described as required.
In rendering such opinion, such counsel may rely as to matters involving the application of laws of any jurisdiction other than the State
of Georgia, the State of Tennessee or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of Alston & Bird LLP or other counsel of good standing whom they believe to be reliable
and who are satisfactory to counsel for the Underwriters.
(d) Alston
& Bird LLP, counsel for the Company, shall have furnished to the Representatives their written opinion, dated each Time of Delivery for such Designated Securities, in form and substance satisfactory to the Representatives, to the effect that:
(i) The Designated Securities conform in all material respects to the
description thereof contained in the Registration Statement and the Prospectus, each as amended or supplemented with respect to such Designated Securities. The Indenture has been duly authorized, executed and delivered by the Company and constitutes
a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws affecting
creditors' rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in
equity or at law); the issuance of the Designated Securities has been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this
Agreement and the applicable Pricing Agreement, the Designated Securities will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture and enforceable against the Company in accordance with their
terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws affecting creditors' rights generally from time to time in effect and to general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law); and the Contract Securities, when executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for in accordance with Delayed Delivery Contracts, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture and enforceable against the Company in
accordance with their terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws affecting creditors' rights generally from time to time in effect and to general principles of equity,
including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law).
(ii) Assuming the due authorization, execution and delivery of any Delayed Delivery Contract by the purchaser named therein, such
Contract will constitute a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms (subject to applicable
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bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws affecting creditors'
rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at
law).
In addition, such counsel shall state that they have no reason to believe that, as of its effective date,
the Registration Statement or any further amendment thereto made by the Company prior to such Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact, in each case, solely with respect to information of or about the Company, required to be stated therein or necessary to make the statements therein not misleading or that, as of its
date, the Prospectus as amended or supplemented or any further amendment or supplement thereto made by the Company prior to such Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need
express no opinion) contained an untrue statement of a material fact or omitted to state a material fact, in each case, solely with respect to information of or about the Company, necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading or that, as of such Time of Delivery, either the Registration Statement or the Prospectus as amended or supplemented or any further amendment or supplement thereto made by the Company prior to
such Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contains an untrue statement of a material fact or omits to state a material fact, in each case, solely with
respect to information of or about the Company, necessary to make the statements therein, in light of the circumstances in which they were made, not misleading; and such counsel shall state that they do not know of any amendment to the Registration
Statement required to be filed or any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus as amended or supplemented or required
to be described in the Registration Statement or the Prospectus as amended or supplemented which are not filed or incorporated by reference or described as required.
(e) On the date of the Pricing Agreement for such Designated Securities and at each Time of Delivery for such Designated Securities, Ernst & Young LLP shall have
furnished to the Representatives a letter, dated the effective date of the Registration Statement or the date of the most recent report filed with the Commission containing financial statements and incorporated by reference in the Registration
Statement, if the date of such report is later than such effective date, and a letter dated such Time of Delivery, respectively, to the effect set forth in Annex II hereto, and with respect to such letter dated such Time of Delivery, as to such
other matters as the Representatives may reasonably request and in form and substance satisfactory to the Representatives;
(f) (i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus as amended or supplemented any loss or
interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or government action, order or decree, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented, and (ii) since the respective dates as of which information is given in the Prospectus as amended or supplemented there shall not have been any material change in the capital stock or long-term debt of
15
the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’
equity or results of operations of the Company and its subsidiaries considered as a whole, otherwise than as set forth or contemplated in the Prospectus as amended or supplemented, the effect of which, in any such case described in Clause (i) or
(ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Designated Securities on the terms and in the manner contemplated in the
Prospectus as amended or supplemented;
(g) On or after the date of the
Pricing Agreement relating to the Designated Securities (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as
that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the
Company’s debt securities or preferred stock;
(h) On or after the
date of the Pricing Agreement relating to the Designated Securities there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension in
trading of any securities of the Company on any exchange or in any over-the-counter market on which the securities of the Company are currently traded; (iii) a material disruption in securities settlement, payment or clearance services in the United
States; (iv) any moratorium on commercial banking activities declared by Federal or New York State authorities; or (v) any outbreak or escalation of hostilities involving the United States, or any change in financial markets or any other calamity or
crisis that, in the judgment of the Representatives, is material and adverse and which, singly or together with any other event specified in this clause (v), makes it, in the judgment of the Representatives, impracticable or inadvisable to proceed
with the public offering or the delivery of the Designated Securities on the terms and in the manner contemplated in the Prospectus as amended or supplemented; and
(i) The Company shall have furnished or caused to be furnished to the Representatives at each Time of Delivery for the Designated
Securities a certificate or certificates of officers of the Company satisfactory to the Representatives as to the accuracy of the representations and warranties of the Company herein at and as of each Time of Delivery, as to the performance by the
Company of all of its obligations hereunder to be performed at or prior to each Time of Delivery, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as the Representatives may reasonably request.
8. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, any preliminary prospectus supplement, the Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the
statements therein (i) in the case of the Registration Statement, not misleading and (ii) in the case of the Prospectus, in the light of the circumstances under which they were made, not misleading, and will
16
reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus, any preliminary prospectus supplement, the Registration Statement, the Prospectus as amended or supplemented and any other prospectus relating to the Securities, or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use in the Prospectus as amended or supplemented relating to such Securities; and
provided, further, that the Company shall not be liable to any Underwriter under the indemnity agreement in this subsection (a) with respect to any Preliminary Prospectus to the extent that any such loss, claim, damage or liability of such
Underwriter results from the fact such Underwriter sold Securities to a person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus (excluding documents incorporated by reference) or of
the Prospectus as then amended or supplemented (excluding documents incorporated by reference) in any case where such delivery is required by the Act if the Company has previously furnished copies thereof to such Underwriter and the loss, claim,
damage or liability of such Underwriter results from an untrue statement or omission of a material fact contained in the Preliminary Prospectus which was corrected in the Prospectus (or the Prospectus as amended or supplemented).
(b) Each Underwriter will indemnify and hold harmless the Company against any losses, claims, damages
or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, any preliminary prospectus supplement, the Registration Statement, the Prospectus as amended or supplemented and any other prospectus relating to the Securities, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (i) in the case of the Registration Statement, not
misleading and (ii) in the case of any Prospectus, in the light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, any preliminary prospectus supplement, the Registration Statement, the Prospectus as amended or supplemented and any other prospectus relating to the Securities, or any such amendment or
supplement in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use therein; and will reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any
indemnified party otherwise than under such subsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except
17
with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation.
(d) If the indemnification
provided for in this Section 8 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof)
relates. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters of the Designated
Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and such Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by such Underwriters. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on the one hand or such Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions
in respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding
the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of Designated Securities in this subsection (d) to
contribute are several in proportion to their respective underwriting obligations with respect to such Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same
18
terms and conditions, to each person, if any, who controls any Underwriter within the meaning of the Act; and the obligations of the Underwriters under this Section 8 shall be in addition to any
liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Firm Securities or Optional Securities which it has agreed to purchase under the Pricing Agreement relating to such Firm Securities or Optional Securities, the Representatives may in their discretion arrange for themselves or another
party or other parties to purchase such Underwriters’ Securities on the terms contained herein. If within thirty-six hours after such default by any Underwriter the Representatives do not arrange for the purchase of such Firm Securities or
Optional Securities, then the Company shall be entitled to a further period of thirty-six hours within which to procure another party or other parties satisfactory to the Representatives to purchase such Firm Securities or Optional Securities on
such terms. In the event that, within the respective prescribed period, the Representatives notify the Company that they have so arranged for the purchase of such Firm Securities or Optional Securities, or the Company notifies the Representatives
that it has so arranged for the purchase of such Firm Securities or Optional Securities, the Representatives or the Company shall have the right to postpone the Time of Delivery for such Firm Securities or Optional Securities for a period of not
more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus as amended or supplemented, or in any other documents or arrangements, and the Company agrees to file promptly
any amendments or supplements to the Registration Statement or the Prospectus which in the opinion of the Representatives may thereby be made necessary. The term “Underwriter” as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a party to the Pricing Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the Firm Securities or Optional Securities, as the case may be, of a defaulting Underwriter or Underwriters
by the Representatives and the Company as provided in subsection (a) above, the aggregate principal amount of such Firm Securities or Optional Securities, as the case may be, which remains unpurchased does not exceed one-eleventh of the aggregate
principal amount of the Firm Securities or Optional Securities, as the case may be, then the Company shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Firm Securities or Optional Securities, as the
case may be, which such Underwriter agreed to purchase under the Pricing Agreement relating to such Designated Securities and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the aggregate principal
amount of Firm Securities or Optional Securities, as the case may be, which such Underwriter agreed to purchase under such Pricing Agreement) of the Firm Securities or Optional Securities, as the case may be, of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the Firm Securities or Optional Securities, as the case may be, of a defaulting Underwriter or Underwriters
by the Representatives and the Company as provided in subsection (a) above, the aggregate principal amount of Firm Securities or Optional Securities, as the case may be, which remains unpurchased exceeds one-eleventh of the aggregate principal
amount of the Firm Securities or Optional Securities, as the case may be, as referred to in subsection (b) above, or if the Company shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to purchase
Firm Securities or Optional Securities, as the case may be, of a defaulting
19
Underwriter or Underwriters, then the Pricing Agreement relating to such Designated Securities shall thereupon terminate, without liability on the part of any non-defaulting Underwriter or the
Company, except for the expenses to be borne by the Company and the Underwriters as provided in Section 6 hereof and the indemnity and contribution agreements in Section 8 hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf of any Underwriter or any controlling person of any Underwriter, or the Company, or any officer or director or controlling person of the Company, and shall survive
delivery of and payment for the Securities.
11. If any Pricing Agreement or
Over-allotment Option shall be terminated pursuant to Section 9 hereof, the Company shall not then be under any liability to any Underwriter with respect to the Firm Securities or Optional Securities covered by such Pricing Agreement except as
provided in Section 6 and Section 8 hereof; but, if for any other reason Designated Securities are not delivered by or on behalf of the Company as provided herein, the Company will reimburse the Underwriters through the Representatives for all
out-of-pocket expenses approved in writing by the Representatives, including fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery of such Designated Securities, but the
Company shall then be under no further liability to any Underwriter with respect to such Designated Securities except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of Designated Securities shall act on behalf of each of such Underwriters,
and the parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any Underwriter made or given by such Representatives jointly or by such of the Representatives, if any, as may be designated for
such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or facsimile transmission to the address of the Representatives as set forth in the Pricing Agreement; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the Registration Statement; Attention: Secretary; provided, however, that any notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by mail, telex or
facsimile transmission to such Underwriter at its address set forth in its Underwriters’ Questionnaire, or telex constituting such Questionnaire, which address will be supplied to the Company by the Representatives upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt thereof.
13.
This Agreement and each Pricing Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters, the Company and, to the extent provided in Section 8 and Section 10 hereof, the officers and directors of the Company and each
person who controls the Company or any Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement or any such Pricing
Agreement. No purchaser of any of the Securities from any Underwriter shall be deemed a successor or assign by reason merely of such purchase.
20
14. Time shall be of the essence for each Pricing
Agreement. As used herein, “business day” shall mean any day when the Commission’s office in Washington, D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be governed by and construed in accordance with the laws of the State of New York.
16. This Agreement and each Pricing Agreement may be executed by any one or more of the parties hereto and thereto
in any number of counterparts, each of which shall be deemed to be an original, but all such respective counterparts shall together constitute one and the same instrument.
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Very truly yours,
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UnumProvident Corporation
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By:
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/s/ F. Dean
Copeland
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F. Dean Copeland
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Senior Executive Vice President and
General Counsel
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21
ANNEX I
PRICING AGREEMENT
Goldman, Sachs & Co.
J. P. Morgan Securities Inc.
Morgan Stanley & Co.
Incorporated
As Representatives of the several
Underwriters named in Schedule I hereto
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
June 13, 2002
Ladies and Gentlemen:
UnumProvident Corporation, a Delaware corporation (the “Company”), proposes, subject to the terms and conditions stated herein
and in the Underwriting Agreement, dated June 13, 2002 (the “Underwriting Agreement”), to issue and sell to the Underwriters named in Schedule I hereto (the “Underwriters”) the Securities specified in Schedule II hereto (the
“Designated Securities”). Each of the provisions of the Underwriting Agreement is incorporated herein by reference in its entirety, and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth therein shall be deemed to have been made at and as of the date of this Pricing Agreement, except that each representation and warranty that refers to the Prospectus in
Section 2 of the Underwriting Agreement shall be deemed to be a representation or warranty as of the date of the Underwriting Agreement in relation to the Prospectus (as therein defined), and also a representation and warranty as of the date of this
Pricing Agreement in relation to the Prospectus as amended or supplemented relating to the Designated Securities which are the subject of this Pricing Agreement. Each reference to the Representatives herein and in the provisions of the Underwriting
Agreement so incorporated by reference shall be deemed to refer to you. Unless otherwise defined herein, terms defined in the Underwriting Agreement are used herein as therein defined. The Representatives designated to act on behalf of the
Representatives and on behalf of each of the Underwriters of the Designated Securities pursuant to Section 12 of the Underwriting Agreement and the address of the Representatives referred to in such Section 12 are set forth at the end of Schedule II
hereto.
An amendment to the Registration Statement, or a supplement to the Prospectus, as the case may be,
relating to the Designated Securities, in the form heretofore delivered to you, is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the Underwriting Agreement incorporated herein by reference, the Company agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally
and not jointly, to purchase from the Company, at the time and place and at the purchase price to the Underwriters set forth in Schedule II hereto, the principal amount of Designated Securities set forth opposite the name of such Underwriter in
Schedule I hereto, less the principal amount of Designated Securities covered by Delayed Delivery Contracts, if any, as may be specified in Schedule II.
If the foregoing is in accordance with your understanding, please sign and return
to us counterparts hereof, and upon acceptance hereof by you, on behalf of each of the Underwriters, this letter and such acceptance hereof, including the provisions of the Underwriting Agreement incorporated herein by reference, shall constitute a
binding agreement between each of the Underwriters and the Company. It is understood that your acceptance of this letter on behalf of each of the Underwriters is or will be pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Company for examination upon request, but without warranty on the part of the Representatives as to the authority of the signers thereof.
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Very truly yours,
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UnumProvident Corporation
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By:
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/s/ F. Dean Copeland
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F. Dean Copeland, Senior Executive
Vice
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President and General
Counsel
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Accepted as of the date hereof:
Goldman, Sachs & Co.
J. P. Morgan Securities Inc.
Morgan Stanley & Co. Incorporated
As Representatives of the Several Underwriters
named in Schedule I hereto
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By: Morgan Stanley & Co. Incorporated
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By:
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/s/ Michael Fusco
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Name: Michael
Fusco
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Title: Executive Director
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SCHEDULE I
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Underwriter
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Principal
Amount of
Firm
Securities
to be
Purchased
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Goldman, Sachs & Co.
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$
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68,333,000
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J. P. Morgan Securities Inc. .
|
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68,333,000
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Morgan Stanley & Co. Incorporated
|
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68,334,000
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Banc of America Securities LLC
|
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15,000,000
|
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Deutsche Bank Securities Inc.
|
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15,000,000
|
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Salomon Smith Barney Inc.
|
|
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15,000,000
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|
|
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Total
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$
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250,000,000
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SCHEDULE II
Title of Designated Securities:
7.375% Senior
Debentures due 2032 (the “Debentures”)
Aggregate Principal Amount:
$250,000,000 of the Debentures
Price to Public:
98.729% of the principal amount of the Debentures, plus accrued interest,
if any, from June 18, 2002
Purchase Price by Underwriters:
97.854% of the principal amount of the Debentures, plus accrued interest, if any,
commencing at the Time of Delivery
Underwriters’ Commission:
0.875% of the aggregate principal amount of the Debentures
Specified Funds for Payment of Purchase Price:
Same-Day funds
Indenture:
Second
Supplemental Indenture, to be dated as of June 18, 2002, to Indenture, dated March 9, 2001, between the Company and JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank), as Trustee
Maturity:
June 15, 2032
Interest Rate:
7.375% per annum
Interest Payment Dates:
June 15 and December 15, commencing December 15, 2002
Record Dates:
The 1st calendar day of the month in which each interest payment date occurs
Redemption Provisions:
As set forth in the Prospectus Supplement, dated June 13, 2002, under “Description of Debentures—Optional Redemption”
Sinking Fund Provisions:
No sinking fund provisions
Defeasance Provisions:
As set forth in the Prospectus, dated September 1, 2000, or the Prospectus Supplement, dated June 13, 2002
Time of Delivery:
9:30 A.M., New York City time, on June 18, 2002 (which is three
business days after the date of the Pricing Agreement relating to the Debentures, which date may be delayed by agreement among the Representatives and the Company (as defined therein))
Form at Time of Delivery:
Book-entry only
Closing Location:
Sullivan & Cromwell, 125 Broad Street, New York, New York 10004
Delayed Delivery:
None
Names and Addresses of Representatives:
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Designated Representatives:
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Goldman, Sachs & Co.
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J. P. Morgan Securities Inc.
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Morgan Stanley & Co. Incorporated
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Address for Notices, etc.:
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Morgan Stanley & Co. Incorporated
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1585 Broadway
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New York, New York 10036.
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ANNEX II
Pursuant to Section 7(e) of the Underwriting Agreement, the accountants named therein shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to the Company and its
subsidiaries within the meaning of the Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary financial information and schedules audited (and, if applicable, prospective financial statements and/or pro forma financial information
examined) by them and included or incorporated by reference in the Registration Statement or the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act or the Exchange Act, as applicable, and the
related published rules and regulations thereunder; and, if applicable, they have made a review in accordance with standards established by the American Institute of Certified Public Accountants of the consolidated interim financial statements,
selected financial data, pro forma financial information, prospective financial statements and/or condensed financial statements derived from audited financial statements of the Company for the periods specified in such letter, as indicated in their
reports thereon, copies of which have been furnished to the representatives of the Underwriters (the “Representatives”);
(iii) The unaudited selected financial information with respect to the consolidated results of operations and financial position of the Company for the five most recent fiscal
years included in the Prospectus and included or incorporated by reference in Item 6 of the Company’s Annual Report on Form 10-K for the most recent fiscal year agrees with the corresponding amounts (after restatement where applicable) in the
audited consolidated financial statements for five such fiscal years which were included or incorporated by reference in the Company’s Annual Reports on Form 10-K for such fiscal years;
(iv) On the basis of limited procedures, not constituting an audit in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other information referred to below, a reading of the latest available interim financial statements of the Company and its subsidiaries, inspection of the minute books of the Company
and its subsidiaries since the date of the latest audited financial statements included or incorporated by reference in the Prospectus, inquiries of officials of the Company and its subsidiaries responsible for financial and accounting matters and
such other inquiries and procedures as may be specified in such letter, nothing came to their attention that caused them to believe that:
(A) the unaudited condensed consolidated statements of income, consolidated balance sheets and consolidated statements of cash flows included or incorporated by reference in the
Company’s Quarterly Reports on Form 10-Q incorporated by reference in the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act as it applies to Form 10-Q and the related
published rules and regulations thereunder or are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with the basis for the audited consolidated statements of income, consolidated balance
sheets and consolidated statements of cash flows included or incorporated by reference in the Company’s Annual Report on Form 10-K for the most recent fiscal year;
(B) any other unaudited income statement
data and balance sheet items included in the Prospectus do not agree with the corresponding items in the unaudited consolidated financial statements from which such data and items were derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis for the corresponding amounts in the audited consolidated financial statements included or incorporated by reference in the Company’s Annual Report on Form 10-K for the most recent
fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the unaudited condensed financial statements referred to in clause (A) above and any unaudited income statement data and balance sheet items included in the Prospectus and referred to in Clause
(B) above were not determined on a basis substantially consistent with the basis for the audited financial statements included or incorporated by reference in the Company’s Annual Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial statements
included or incorporated by reference in the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Act and the published rules and regulations thereunder or the pro forma adjustments have not
been properly applied to the historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to the date of such letter, there have been any changes in the consolidated capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance shares and upon conversions of convertible securities, in each case which were outstanding on the date of the latest balance sheet included or incorporated by reference in the
Prospectus) or any increase in the consolidated long-term debt of the Company and its subsidiaries, or any decreases in consolidated net assets or other items specified by the Representatives, or any increases in any items specified by the
Representatives, in each case as compared with amounts shown in the latest balance sheet included or incorporated by reference in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(F) for the period
from the date of the latest financial statements included or incorporated by reference in the Prospectus to the specified date referred to in Clause (E) above there were any decreases in consolidated net revenues or any material decrease in
operating profit or any material decrease in the total or per share amounts of consolidated net income or other items specified by the Representatives, or any increases in any items specified by the Representatives, in each case as compared with the
comparable period of the preceding year and with any other period of corresponding length specified by the Representatives, except in each case for increases or decreases which the Prospectus discloses have occurred or may occur or which are
described in such letter; and
(v) In addition to the audit referred to in
their report(s) included or incorporated by reference in the Prospectus and the limited procedures, inspection of minute books, inquiries and other procedures referred to in paragraphs (iii) and (iv) above, they have carried out certain specified
procedures, not constituting an audit in accordance with generally accepted auditing standards,
with respect to certain amounts, percentages and financial information specified by the Representatives which are derived from the general accounting records of the Company and its subsidiaries,
which appear in the Prospectus (excluding documents incorporated by reference), or in Part II of, or in exhibits and schedules to, the Registration Statement specified by the Representatives or in documents incorporated by reference in the
Prospectus specified by the Representatives, and have compared certain of such amounts, percentages and financial information with the accounting records of the Company and its subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to refer to the Prospectus (including the documents
incorporated by reference therein) as defined in the Underwriting Agreement as of the date of the letter delivered on the date of the Pricing Agreement for purposes of such letter and to the Prospectus as amended or supplemented (including the
documents incorporated by reference therein) in relation to the applicable Designated Securities for purposes of the letter delivered at the Time of Delivery for such Designated Securities.
ANNEX III
DELAYED DELIVERY CONTRACT
UnumProvident Corporation
One Fountain Square
Chattanooga, Tennessee 37402
Attention
, 20
Dear Ladies
and Gentlemen:
The undersigned hereby agrees to purchase from UnumProvident Corporation (hereinafter called the
“Company”), and the Company agrees to sell to the undersigned,
$
principal amount of the Company’s debt securities (hereinafter called the “Designated Securities”), offered by the Company’s Prospectus
dated 20 , as amended or supplemented, receipt of a copy of which is hereby acknowledged, at a purchase price of % of the principal amount thereof, plus
accrued interest from the date from which interest accrues as set forth below, and on the further terms and conditions set forth below, and on the further terms and conditions set forth in this contract.
The undersigned will purchase the Designated Securities from the Company on
, 20 (the “Delivery Date”) and interest on the Designated Securities so
purchased will accrue from , 20 .
The undersigned will purchase the Designated Securities from the Company on the delivery date or dates and in the principal amount or
amounts set forth below:
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Delivery Date
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Principal
Amount
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Date from
Which
Interest
Accrues
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, 20
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$
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, 20
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, 20
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$
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, 20
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Each such date on which Designated Securities are to be purchased hereunder is
hereinafter referred to as a “Delivery Date.”
Payment for the Designated Securities which the
undersigned has agreed to purchase on each Delivery Date shall be made to the Company or its order by certified or official bank check in Clearing House funds at the office
of , or by wire transfer to a bank account specified by the Company, on such Delivery Date upon delivery to the undersigned of
the Designated Securities then to be purchased by the undersigned in definitive fully registered form and in such denominations and registered in such names as the undersigned may designate by written, telex or facsimile communication addressed to
the Company not less than five full business days prior to such Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Designated Securities on each Delivery Date shall be subject to the condition that the purchase of Designated Securities to be made by the undersigned shall not on such Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject. The obligation of the undersigned to take delivery of and make payment for Designated Securities shall not be affected by the failure of any purchaser to take delivery of and make payment for Designated Securities pursuant to
other contracts similar to this contract.
The undersigned understands that Underwriters (the
“Underwriters”) are also purchasing Designated Securities from the Company, but that the obligations of the Undersigned hereunder are not contingent on such purchases. Promptly after completion of the sale to the Underwriters the Company
will mail or deliver to the undersigned at its address set forth below notice to such effect, accompanied by a copy of the Opinion of Counsel for the Company delivered to the Underwriters in connection therewith.
The undersigned represents and warrants that, as of the date of this contract, the undersigned is not prohibited from purchasing the
Designated Securities hereby agreed to be purchased by it under the laws of the jurisdiction to which the undersigned is subject.
This contract will inure to the benefit of and be binding upon the parties hereto and their respective successors, but will not be assignable by either party hereto without the written consent of the other.
This contract may be executed by either of the parties hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same instrument.
It is understood that
the acceptance by the Company of any Delayed Delivery Contract (including this contract) is in the Company’s sole discretion and that, without limiting the foregoing, acceptances of such contracts need not be on a first–come,
first–served basis. If this contract is acceptable to the Company, it is requested that the Company sign the form of acceptance below and mail or deliver one of the counterparts hereof to the undersigned at its address set forth below. This
will become a binding contract between the Company and the undersigned when such counterpart is so mailed or delivered by the Company.
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Very truly
yours,
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By:
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(Authorized Signature)
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Name:
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Title:
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(Address)
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Accepted: , 200_
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UnumProvident Corporation
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By:
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Name:
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Title:
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APPENDIX A
LIST OF SIGNIFICANT SUBSIDIARIES
Colonial
Companies, Inc.
Colonial Life & Accident Insurance Company
Provident Life and Accident Insurance Company
The Paul Revere Corporation
The Paul Revere Life Insurance Company
Unum Holding Company
Unum Life Insurance Company of America
EXHIBIT 4.2
UNUMPROVIDENT CORPORATION
AND
JPMORGAN CHASE BANK
as Trustee
_________________________________________________
SECOND SUPPLEMENTAL INDENTURE
June 18, 2002
__________________________________________________
Supplement to Indenture dated as of March 9, 2001
(Senior Debt Securities)
SECOND
SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE, dated as of
June 18, 2002, by and between UNUMPROVIDENT CORPORATION, a Delaware corporation (hereinafter called the “Company”), having its principal office at 1 Fountain Square, Chattanooga, Tennessee 37402 and JPMORGAN CHASE BANK (formerly known as
The Chase Manhattan Bank), a New York banking corporation (hereafter called the “Trustee”), having a Corporate Trust Office at 450 West 33rd Street, 15th Floor, New York, New York 10001, as Trustee under the Indenture (as hereinafter
defined).
RECITALS
WHEREAS, the Company and the Trustee have as of March 9, 2001 entered into an Indenture (hereinafter called the “Indenture”, all capitalized terms used and not otherwise defined herein shall have the meanings set
forth in the Indenture) providing for the issuance by the Company from time to time of its subordinated debt securities;
WHEREAS, the Company issued a series of 7.625% senior notes due 2011 under the Indenture and First Supplemental Indenture dated as of March 9, 2001;
WHEREAS, the Company desires to issue a second series of senior debt securities under the Indenture, and has duly authorized the creation and issuance of such debt
securities and the execution and delivery of this Second Supplemental Indenture to modify the Indenture and provide certain additional provisions as hereinafter described;
WHEREAS, the Company and the Trustee deem it advisable to enter into this Second Supplemental Indenture for the purposes of establishing the terms of such debt securities
and providing for the rights, obligations and duties of the Trustee with respect to such debt securities;
WHEREAS, the execution and delivery of this Second Supplemental Indenture has been authorized by a resolution of the Pricing Committee of the Board of Directors of the Company;
WHEREAS, concurrent with the execution hereof, the Company has delivered an Officers’ Certificate and has caused its counsel to deliver to the Trustee an Opinion
of Counsel; and
WHEREAS, all conditions and requirements of the Indenture necessary to make this Second
Supplemental Indenture a valid, binding and legal instrument in accordance with its terms have been performed and fulfilled by the parties hereto and the execution and delivery thereof have been in all respects duly authorized by the parties hereto.
NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the mutual premises and agreements herein contained, the Company and the Trustee covenant and agree, for the equal and proportionate benefit of
all Holders of the Debentures, as follows:
ARTICLE ONE
CREATION OF THE DEBENTURES
Section
1.1. Designation of Series
. Pursuant to the terms hereof and Sections 201 and 301 of the Indenture, the Company hereby creates a series of its debt securities designated as the “7.375% Senior
Debentures due 2032” (the “Debentures”), which Debentures shall be deemed “Securities” for all purposes under the Indenture.
Section 1.2. Form of Debentures
. The definitive form of the Debentures shall be substantially in the form set forth in
Exhibit A
attached hereto, which is incorporated herein and made part hereof. The Debentures shall bear interest, be payable and have such other terms as are stated in the form of definitive Debenture
2
and in the Indenture, as supplemented by this Second Supplemental Indenture. The Stated Maturity of the
Debentures shall be June 15, 2032.
Section 1.3. Limit on Amount of
Series
. The Debentures initially shall not exceed U.S. $250,000,000 in aggregate principal amount, and may, upon the execution and delivery of this Second Supplemental Indenture or from time to time thereafter, be executed
by the Company and delivered to the Trustee for authentication, and the Trustee shall thereupon authenticate and deliver said Debentures upon the delivery of a Company Order;
provided, however
, that, pursuant to Section 1.8 hereof and the
penultimate paragraph of Section 301 of the Indenture, the Company may elect at any time and from time to time to issue Additional Debentures (as defined in Section 1.8 below) after the date hereof in such aggregate principal amount or amounts as it
shall elect.
Section 1.4. No Sinking Fund
. No sinking fund
will be provided with respect to the Debentures.
Section 1.5. Debentures Not
Convertible or Exchangeable
. The Debentures will not be convertible or exchangeable for other securities or property.
Section 1.6. Issuance of Debentures; Selection of Depository
. The Debentures shall be issued as Registered Securities in permanent global form,
without coupons. The initial Depository for the Debentures shall be DTC.
Section
1.7. No Additional Amounts.
No Additional Amounts shall be payable with respect to the Debentures.
Section 1.8.
Issuance of Additional Debentures.
From time to time subsequent to the date hereof, without the consent of the Holders of the
Debentures, the Company may create and issue additional Debentures (the “Additional Debentures”) under the terms of the Indenture and this Second Supplemental Indenture (and without the need to execute any additional supplemental
indenture). The Additional Debentures shall be issued as part of the existing series of Debentures issued pursuant to this Second Supplemental Indenture and shall have terms identical in all material respects (except for the initial interest accrual
date and the first Interest Payment Date) to any Outstanding Debentures and shall be treated together with any Outstanding Debentures as a single issue of Debentures. Any Additional Debentures issued hereunder shall rank equally and ratably with the
Debentures originally issued pursuant to this Supplemental Indenture, shall have the same CUSIP number and shall trade interchangeably with such Debentures and shall otherwise constitute Debentures for all other purposes hereof. Any Additional
Debentures may be issued pursuant to authorization provided by one or more Board Resolutions.
ARTICLE TWO
APPOINTMENT OF THE TRUSTEE FOR THE DEBENTURES
Section 2.1. Appointment of Trustee
. Pursuant and subject to the Indenture, the Company and the Trustee hereby
constitute the Trustee as trustee to act on behalf of the Holders of the Debentures, and as the principal Paying Agent and Security Registrar for the Debentures, effective upon execution and delivery of this Second Supplemental Indenture. By
execution, acknowledgment and delivery of this Second Supplemental Indenture, the Trustee hereby accepts appointment as trustee, Paying Agent and Security Registrar with respect to the Debentures, and agrees to perform such trusts upon the terms and
conditions set forth in the Indenture and in this Second Supplemental Indenture.
Section
2.2. Rights, Powers, Duties and Obligations of the Trustee
. Any rights, powers, duties and obligations by any provisions of the Indenture conferred or imposed upon the Trustee shall, insofar as
permitted by law, be conferred or imposed upon and exercised or performed by the Trustee with respect to the Debentures.
3
ARTICLE THREE
DEFEASANCE
Section
3.1. Defeasance Applicable to Debentures.
Pursuant to Section 301(19) and Section 1401 of the Indenture, the Company will have (i) the option of defeasance of the Debentures under Section 1402 of the
Indenture and (ii) the option of covenant defeasance under Section 1403, in each case, upon the terms and conditions contained in Article Fourteen of the Indenture.
ARTICLE FOUR
REDEMPTION OF DEBENTURES
Pursuant to Section 301(6) and Section 1101 of the Indenture, so long as any of the Debentures are Outstanding, the following
provisions shall be applicable to the Debentures:
Section 4.1.
Optional
Redemption by the Company.
(a) Each of the Debentures may be redeemed at the option of
the Company (an “Optional Redemption”) at any time, in whole or in part, upon notice as set forth in Section 1104 of the Indenture, at a Redemption Price equal to the greater of (1) 100% of the principal amount of such Debentures to be
redeemed and (2) the sum of the present values of the remaining scheduled payments of principal and interest on such Debentures to be redeemed (not including any portion of such payments of interest accrued to the Redemption Date) discounted to the
Redemption Date on a semi annual basis (assuming a 360-day year consisting of twelve 30-day months) from the respective date on which such principal and interest would have been paid had such Debentures not been redeemed at the applicable Treasury
Rate plus 40 basis points, plus, in either case, accrued and unpaid interest on the principal amount of such Debentures to the Redemption Date.
(b) Notwithstanding Section 1104 of the Indenture, notice of redemption shall be sufficient if instead of setting forth a specific price with respect to the Redemption Price, it
sets forth the manner of calculation thereof.
(c) If less than all of the Debentures are
redeemed, Debentures shall be selected for redemption pursuant to the provisions of Section 1103 of the Indenture.
(d) The provisions of Sections 1105, 1106 and 1107 of the Indenture shall apply to a redemption of the Debentures.
Section 4.2.
Certain Definitions.
For purposes hereof,
“Comparable Treasury Issue”
means the United States Treasury security selected by an Independent Investment Banker as having a maturity
comparable to the remaining term of the Debentures to be redeemed that would be used, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such Debentures.
“Comparable Treasury Price”
means, with
respect to any Redemption Date, (a)
4
the average of the Reference Treasury Dealer Quotations for such Redemption Date,
after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (b) if the Trustee obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
“
Independent Investment Banker
” means any of the Reference Treasury Dealers appointed by the Company as
such.
“
Reference Treasury Dealer Quotations
” means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the
Trustee by such Reference Treasury Dealer at 5:00 p.m. on the third Business Day preceding such Redemption Date.
“
Reference Treasury Dealer
” means each of Goldman, Sachs & Co., J.P. Morgan Securities Inc. and Morgan Stanley & Co. Incorporated and any other primary U.S. Government securities dealer in New York City (a
“Primary Treasury Dealer”) selected by the Company, and their respective successors;
provided, however
, that if any of the foregoing shall cease to be a Primary Treasury Dealer, the Company shall replace that former dealer with
another Primary Treasury Dealer.
“
Treasury Rate
” means, with respect to any
Redemption Date, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date.
Section 4.3. Applicability of
Article.
Redemption of the Debentures at the election of the Company or otherwise, as permitted or required by any provision of the Debentures or this Second Supplemental Indenture, shall be made in accordance with such
provision, Article Eleven of the Indenture and this Article Four.
ARTICLE FIVE
MISCELLANEOUS
Section 5.1. Application of Second Supplemental Indenture
. Each and every term and condition contained in the Second Supplemental Indenture that modifies, amends or supplements the
terms and conditions of the Indenture shall apply only to the Debentures created hereby, including any Additional Debentures, and not to any future series of Securities established under the Indenture.
Section 5.2. Benefits of Second Supplemental Indenture
. Nothing contained in this
Second Supplemental Indenture shall or shall be construed to confer upon any person other than a Holder of the Debentures, the Company and the Trustee any right or interest to avail itself or himself, as the case may be, of any benefit under any
provision of the Indenture or this Second Supplemental Indenture.
Section
5.3. Effective Date
. This Second Supplemental Indenture shall be effective as of the date first above written and upon the execution and delivery hereof by each of the parties hereto.
Section 5.4. Governing Law
. This Second Supplemental Indenture shall be
governed by, and construed in accordance with, the laws of the State of New York.
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Section
5.5. Counterparts
. This Second 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.
Section 5.6. Satisfaction and
Discharge
. The Company shall be deemed to have satisfied all of its obligations under this Second Supplemental Indenture upon compliance with the provisions of Section 1402 of the Indenture relating to defeasance of the
Debentures, to the extent set forth in Section 1401.
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IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed by their respective officers hereunto duly authorized, all as of the day and year first above written.
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UNUMPROVIDENT CORPORATION
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Dated: June 18, 2002
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By:
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/s/ Robert C. Greving
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Name: Robert C. Greving
Title: Senior Vice President and Chief Financial Officer
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[Corporate Seal]
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Attest:
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/s/ Susan N. Roth
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Name: Susan N. Roth
Title: Vice
President, Corporate
Secretary and Assistant General Counsel
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JP MORGAN CHASE BANK
not in its individual capacity, but solely as Trustee
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Dated: June 18, 2002
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By:
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/s/ Gregory P. Shea
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Name: Gregory P. Shea
Title: Vice
President
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[Corporate Seal]
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Attest:
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/s/ Virginia Dominguez
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Name: Virginia Dominguez
Title: Trust
Officer
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EXHIBIT A TO
FIRST SUPPLEMENTAL INDENTURE
FORM OF DEBENTURE
[THE FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH GLOBAL SECURITY:
THIS DEBENTURE IS A SECURITY IN GLOBAL FORM (“GLOBAL SECURITY”) WITHIN THE MEANING OF SECTION 203 OF THE BASE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY
OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS DEBENTURE FOR ALL PURPOSES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY 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 DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR DEBENTURES IN DEFINITIVE REGISTERED FORM IN THE LIMITED CIRCUMSTANCES
REFERRED TO IN THE INDENTURE, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]
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UNUMPROVIDENT CORPORATION
7.375% SENIOR DEBENTURE DUE 2032
No.
___________
U.S.$ __________
CUSIP NO. 91529Y AD 8
UNUMPROVIDENT CORPORATION, a corporation duly organized and existing under the laws of the State of Delaware (herein called the “Company”, which term includes any
successor Person under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay to , the principal sum of
United States Dollars (U.S.$ ) (which principal amount may from time to time be increased or decreased
to such other principal amounts by adjustments made on the records of the Trustee hereinafter referred to in accordance with the Indenture) on June 15, 2032 and to pay interest thereon, from June 18, 2002, or from the most recent Interest Payment
Date (as defined below) to which interest has been paid or duly provided for, semi-annually in arrears on June 15 and December 15 in each year (each, an “Interest Payment Date”), commencing December 15, 2002, at the rate of 7.375% per
annum, until the principal hereof is due, and at the rate of 7.375% per annum on any overdue principal and, to the extent permitted by law, on any overdue interest. The interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Debenture (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 Debenture (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 of which shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date and shall otherwise be payable, all as more fully provided in the Indenture. Payments of principal shall be made upon the
surrender of this Debenture at the Corporate Trust Office of the Trustee, or at such other office or agency of the Company as may be designated by the Company for such purpose in the Borough of Manhattan, The City of New York or in the City of
Chattanooga, Tennessee, in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts, by Dollar check drawn on, or transfer to, a Dollar account. Payments of
interest on this Debenture may be made by Dollar check, drawn on a Dollar account, mailed to the address of the Person entitled thereto as such address shall appear in the Security Register, or, upon written application by the Holder to the Security
Registrar setting forth wire instructions not later than the relevant Record Date, by wire transfer to a Dollar account.
Reference is hereby made to the further provisions of this Debenture set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof or an Authenticating
Agent by the manual signature of one of their respective authorized signatories, this Debenture 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 Debenture to be duly executed and delivered under its corporate seal.
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[Corporate Seal]
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UNUMPROVIDENT CORPORATION
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By:
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Name:
Title:
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Attest:
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9
(Trustee’s Certificate of Authentication)
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
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JPMORGAN CHASE BANK, not in its individual capacity, but solely as Trustee
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By:
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Authorized Officer
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[FORM OF REVERSE]
This Debenture is one of a duly authorized issue of securities of the Company designated as its “7.375% Senior Debentures due 2032” (herein called the
“Debentures”), initially limited in aggregate principal amount to U.S. $250,000,000, issued and to be issued under an Indenture, dated as of March 9, 2001 (herein called the “Base Indenture”), between the Company and JPMorgan
Chase Bank (formerly known as The Chase Manhattan Bank), as Trustee (herein called the “Trustee”, which term includes any successor trustee under the Base Indenture), and a Second Supplemental Indenture, dated as of June 18, 2002, between
the Company and the Trustee (the “Second Supplemental Indenture”; the Base Indenture, as supplemented by the Second Supplemental Indenture, the “Indenture”), to which Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Debentures and of the terms upon which the Debentures are, and are to be, authenticated
and delivered. As provided in the Indenture and subject to certain limitations therein set forth, Debentures are exchangeable for a like aggregate principal amount of Debentures of any authorized denominations as requested by the Holder surrendering
the same upon surrender of the Debenture or Debentures to be exchanged, at the Corporate Trust Office of the Trustee. The Trustee upon such surrender by the Holder will issue the new Debentures in the requested denominations.
No sinking fund is provided for the Debentures.
Each of the Debentures may be redeemed at the option of the Company (an “Optional Redemption”) at any time, in whole or in part, upon notice as set forth in
Section 1104 of the Indenture, at a Redemption Price calculated in accordance with Section 4.1 of the Second Supplemental Indenture;
provided
,
however
, that interest installments on Debentures whose Stated Maturity is on or prior to
such Redemption Date will be payable to the Holders of such Debentures, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.
In the event of a redemption of the Debentures, the Company will not be required (a) to register the transfer or
exchange of Debentures for a period of 15 days immediately preceding the selection of Debentures for redemption or (b) to register the transfer or exchange of any Debenture, or portion thereof, called for redemption.
In any case where the due date for the payment of the principal of, premium, if any, or interest on any Debenture at any Place of Payment
as the case may be, is not a Business Day, then payment of principal, premium, if any, or interest of such Debenture need not be made on or by such date at such place but may be made on or by the next succeeding Business Day, with the same force and
effect as if made on the date for such payment or the date fixed for redemption, and, provided that so long as such payment is made on or by the next succeeding Business Day, no interest shall accrue on the amount so payable for the period after
such date.
[The following paragraph shall appear in each Global Security:
In the event of a deposit or withdrawal of an interest in this Debenture, including an exchange, redemption or transfer of this Debenture
in part only, the Trustee, as custodian of the Depositary, shall make an adjustment on its records to reflect such deposit or withdrawal in accordance with the rules and procedures of The Depository Trust Company applicable to, and as in effect at
the time of, such transaction.]
[The following paragraph shall appear in each Debenture that is not a Global
Security:
In the event of redemption of this Debenture in part only, a new Debenture or Debentures for the
unredeemed portion hereof will be issued in the name of the Holder hereof.]
If an Event of Default
shall occur and be continuing, the principal of all the Debentures, together with accrued interest to the date of declaration, 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 written consent of the Holders of not less than a majority in principal
11
amount of the Securities at the time Outstanding and affected thereby. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount of the Debentures at the time Outstanding, on behalf of the Holders of all the Debentures, 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 Debenture shall be conclusive and binding upon such Holder and upon all future Holders of this Debenture and of any Debenture issued
in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Debenture or such other Debenture.
As provided in and subject to the provisions of the Indenture, the Holder of this Debenture shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of
a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default, the Holders of not less than 25% in principal amount of the Debentures that are
Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee indemnity satisfactory to it and the Trustee shall not have received from the Holders of a
majority in principal amount of the Debentures that are Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by any Holder of this Debenture for the enforcement of any payment of principal hereof, or any premium of interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Debenture or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional, to pay the principal of, premium, if any, and interest on this Debenture at the times, places 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 Debenture is registrable on the
Security Register upon surrender of this Debenture for registration of transfer at the Corporate Trust Office of the Trustee or at such other office or agency of the Company as may be designated by it for such purpose in the Borough of Manhattan,
The City of New York or the City of Chattanooga, Tennessee (which shall initially be an office or agency of the Trustee), or at such other offices or agencies as the Company may designate, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Security Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing, and thereupon one or more new Debentures, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees by the Security Registrar. No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to recover any
tax or other governmental charge payable in connection therewith.
Prior to due presentation of this Debenture for
registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Debenture is registered, as the owner thereof for all purposes, whether or not such Debenture be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
No recourse for
the payment of the principal (and premium, if any) or interest on this Debenture and no recourse under or upon any obligation, covenant or agreement of the Company in the Indenture or any indenture supplemental thereto or in any Debenture, or
because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, employee, agent, officer or director or subsidiary, as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of consideration for the issue hereof, expressly waived and released.
THE INDENTURE
AND THIS DEBENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA.
All capitalized terms used in this Debenture which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
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ABBREVIATIONS
The following abbreviations, when used in the inscription of the face of this Debenture, shall be construed as though they were written out in full according to applicable
laws or regulations:
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TEN COM
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as tenants in common
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TEN ENT
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as tenants by the entireties (Cust)
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JT TEN
in common
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—
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as joint tenants with right of survivorship and not as tenants
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UNIF GIFT MIN ACT
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—
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_____________Custodian __________________
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(Minor) under Uniform Gifts to Minors Act ____________
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_________ (State)
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Additional abbreviations may also be used though not in the above
list.
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FORM OF ASSIGNMENT
For value received hereby sell(s), assign(s) and transfer(s) unto
(Please insert social security or other identifying number of assignee) the within Debenture, and hereby irrevocably constitutes and appoints
as attorney to transfer the said Debenture on the books of the Company, with full power of substitution in the premises.
Dated:
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Signature(s) must be guaranteed by an Eligible Guarantor Institution with membership in an approved signature guarantee program pursuant to Rule 17Ad-15 under the
Securities Exchange Act of 1934.
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