Aflac Incorporated Underwriting Agreement
Aflac Incorporated Form 8-K
EXHIBIT 1.1
Execution Version
Aflac Incorporated
8.500% Senior Notes due 2019
May 18, 2009
Xxxxxxx, Xxxxx & Co.,
X.X. Xxxxxx Securities Inc.,
As representatives of the several Underwriters
named in Schedule I hereto,
X.X. Xxxxxx Securities Inc.,
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Xxxxx & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000,
c/o X.X. Xxxxxx Securities Inc.,
000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
Aflac Incorporated, a Georgia corporation (the “Company”), proposes, subject to the terms and
conditions stated herein, to issue and sell to the Underwriters named in Schedule I hereto (the
“Underwriters”), for whom you are acting as representatives (the “Representatives”), an aggregate
of $850,000,000 principal amount of the Notes specified above (the “Securities”).
1. The Company represents and warrants to, and agrees with, each of the Underwriters that:
(a) An “automatic shelf registration statement” as defined under Rule 405 under the
Securities Act of 1933, as amended (the “Act”), on Form S-3 (File No. 333-159111) in
respect of the Securities has been filed with the Securities and Exchange Commission (the
“Commission”) not earlier than three years prior to the date hereof; such registration
statement, and any post-effective amendment thereto, became effective on filing; and no
stop order suspending the effectiveness of such registration statement or any part thereof
has been issued and no proceeding for that purpose has been initiated or threatened by the
Commission, and no notice of objection of the Commission to the use of such registration
statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act
has been received by the Company (the base prospectus filed as part of such registration
statement, in the form in which it has most recently been filed with the Commission on or
prior to the date of this Agreement,
is hereinafter called the “Basic Prospectus”; any preliminary prospectus (including
any preliminary prospectus supplement) relating to the Securities filed with the Commission
pursuant to Rule 424(b) under the Act is hereinafter called a “Preliminary Prospectus”; the
various parts of such registration statement, including all exhibits thereto but excluding
the Form T-1 and including any prospectus supplement relating to the Securities that is
filed with the Commission and deemed by virtue of Rule 430B to be part of such registration
statement, each as amended at the time such part of the registration statement became
effective, are hereinafter collectively called the “Registration Statement”; the Basic
Prospectus, as amended and supplemented immediately prior to the Applicable Time (as
defined in Section 1(c) hereof), is hereinafter called the “Pricing Prospectus”; the form
of the final prospectus relating to the Securities filed with the Commission pursuant to
Rule 424(b) under the Act in accordance with Section 5(a) hereof is hereinafter called the
“Prospectus”; any reference herein to the Basic Prospectus, the Pricing Prospectus, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act,
as of the date of such prospectus; any reference to any amendment or supplement to the
Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include any post-effective amendment to the Registration Statement, any prospectus
supplement relating to the Securities filed with the Commission pursuant to Rule 424(b)
under the Act and any documents filed under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), and incorporated therein, in each case after the date of the Basic
Prospectus, such Preliminary Prospectus, or the Prospectus, as the case may be; any
reference to any amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the
Exchange Act after the effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any “issuer free writing prospectus” as
defined in Rule 433 under the Act relating to the Securities is hereinafter called an
“Issuer Free Writing Prospectus”);
(b) No order preventing or suspending the use of any Preliminary Prospectus or any
Issuer Free Writing Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed 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 did 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, in the 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 through the Representatives expressly for use therein;
(c) For the purposes of this Agreement, the “Applicable Time” is 4:10 p.m. (Eastern
time) on the date of this Agreement; the Pricing Prospectus as
-2-
supplemented by the final term sheet prepared and filed pursuant to Section 5(a)
hereof, taken together (collectively, the “Pricing Disclosure Package”), as of the
Applicable Time, did not include any 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, not misleading; and each Issuer Free Writing
Prospectus listed on Schedule II(a) hereto does not conflict with the information contained
in the Registration Statement, the Pricing Prospectus or the Prospectus and each such
Issuer Free Writing Prospectus, as supplemented by and taken together with the Pricing
Disclosure Package as of the Applicable Time, did not include any 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, not misleading;
provided, however, that this representation and warranty shall not apply to statements or
omissions made in an Issuer Free Writing Prospectus in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through the
Representatives expressly for use therein;
(d) The documents incorporated by reference in the Pricing Prospectus and 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; 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 through the
Representatives expressly for use therein; and no such documents were filed with the
Commission since the Commission’s close of business on the business day immediately prior
to the date of this Agreement and prior to the execution of this Agreement, except as set
forth on Schedule II(b) hereto;
(e) The Registration Statement conforms, and the Prospectus and any further amendments
or supplements to the Registration Statement and the Prospectus will conform, in all
material respects to the requirements of the Act and 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 each part of the Registration Statement 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 not misleading; provided,
-3-
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 through the Representatives expressly for use therein;
(f) Each of the Company, American Family Life Assurance Company of New York (“Aflac
NY”), and any subsidiary of the Company that would qualify as a “significant subsidiary” of
the Company under Rule 1-02 of Regulation S-X (each such subsidiary and Aflac NY, a
“Designated Subsidiary”) has not sustained since the date of the latest audited financial
statements included or incorporated by reference in the Pricing Prospectus 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 governmental action, order
or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, which
loss or interference would have a Material Adverse Effect (as defined below), or would
reasonably be expected to have a prospective Material Adverse Effect; and, since the
respective dates as of which information is given in the Registration Statement and the
Pricing Prospectus, there has not been any change in the capital stock or long-term debt of
the Company or any of its Designated Subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or affecting the general
affairs, management, financial position, shareholders’ equity or results of operations of
the Company and its Designated Subsidiaries, otherwise than as set forth or contemplated in
the Pricing Prospectus; the subsidiaries of the Company, other than the Designated
Subsidiaries, considered in the aggregate as a single subsidiary, do not constitute a
“significant subsidiary” as defined in Rule 1-02 of Regulation S-X;
(g) The Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Georgia, with power and authority (corporate
and other) to own its properties and conduct its business as described in the Pricing
Prospectus, and has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction in which it owns
or leases properties or conducts any business so as to require such qualification, or is
subject to no liability or disability by reason of the failure to be so qualified in any
such jurisdiction, except to the extent that the failure to be so qualified and in good
standing would not, individually or in the aggregate, have a material adverse effect on the
current or future financial position, shareholders’ equity or results of operations of the
Company and its subsidiaries (a “Material Adverse Effect”); and each of its Designated
Subsidiaries has been duly incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation, with power and authority
(corporate and other) to own its properties and conduct its business as described in the
Pricing Prospectus, and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each other jurisdiction
in which it owns or leases properties or conducts any business so as to require such
qualification, or is subject to no liability or disability by reason of the failure to be
so qualified or
-4-
be in good standing in any such jurisdiction, except to the extent that the failure to
be so qualified and in good standing would not have a Material Adverse Effect;
(h) Each of the Company and its subsidiaries that is required to be organized or
licensed as an insurance company in its jurisdiction of incorporation (including
jurisdictions outside of the United States) (each an “Insurance Subsidiary”) has all
necessary consents, licenses, authorizations, approvals, exemptions, orders, certificates
and permits (collectively, the “Consents”) of and from, and has made all filings and
declarations (collectively, the “Filings”) with, all insurance regulatory authorities, all
Federal, state, local and other governmental authorities (including, without limitation,
the Nebraska Department of Insurance and the New York Insurance Department), all
self-regulatory organizations and all courts and other tribunals, necessary to own, lease,
license and use its properties and assets and to conduct its business, except where the
failure to have such Consents or to make such Filings would not, individually or in the
aggregate, have a Material Adverse Effect; all such Consents and Filings are in full force
and effect, the Company and its Insurance Subsidiaries are in compliance with such Consents
and neither the Company nor any of its Insurance Subsidiaries has received any notice of
any inquiry, investigation or proceeding that would reasonably be expected to result in the
suspension, revocation or limitation of any such Consent or otherwise impose any limitation
on the conduct of the business of the Company or any of its respective Insurance
Subsidiaries, except as set forth in the Prospectus or except as any such failure to be in
full force and effect, failure to be in compliance with, suspension, revocation or
limitation would not, individually or in the aggregate, have a Material Adverse Effect;
each of the Company and its Insurance Subsidiaries is in compliance with, and conducts its
businesses in conformity with, all applicable insurance laws and regulations, except where
the failure to do so comply or conform would not, individually or in the aggregate, have a
Material Adverse Effect. Without limiting the foregoing, each of the Insurance
Subsidiaries has made all Filings pursuant to, and has obtained all Consents required of
all applicable insurance laws and regulations in connection with the issuance and sale of
the Securities;
(i) The 2008 statutory annual statements of each Insurance Subsidiary and the
statutory balance sheets and income statements included in such statutory annual statements
together with related schedules and notes have been prepared, in all material respects, in
conformity with statutory accounting principles and practices required or permitted by the
appropriate insurance regulator of the jurisdiction of domicile of each such Insurance
Subsidiary, and such statutory accounting principles and practices have been applied on a
consistent basis throughout the periods involved, except as may otherwise be indicated
therein or in the notes thereto, and present fairly, in all material respects, the
statutory financial position of such Insurance Subsidiaries as of the dates thereof, and
the statutory basis results of operations of such Insurance Subsidiaries for the periods
covered thereby;
(j) The Company has an authorized capitalization as set forth in the Pricing
Prospectus and all of the issued shares of capital stock of the Company
-5-
have been duly and validly authorized and issued and are fully paid and
non-assessable; and all of the issued shares of capital stock of each subsidiary of the
Company have been duly and validly authorized and issued, are fully paid and non-assessable
and are owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims;
(k) Except as disclosed in the Pricing Prospectus, there are no contracts, agreements
or understandings between the Company and any person granting such person the right to
require the Company to file a registration statement under the Act with respect to any
securities of the Company or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the Company under the Act;
(l) The Securities have been duly authorized and, when issued and delivered pursuant
to this Agreement, will have been duly executed, authenticated, issued and delivered and
will constitute valid and legally binding obligations of the Company entitled to the
benefits provided by the indenture to be dated as of May 21, 2009 (as supplemented, the
“Indenture”) between the Company and The Bank of New York Mellon Trust Company, N.A., as
Trustee (the “Trustee”), under which they are to be issued, which is 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, when executed and
delivered by the Company and the Trustee, 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 Securities and the
Indenture will conform to the descriptions thereof in the Pricing Disclosure Package and
the Prospectus;
(m) The issue and sale of the Securities and the compliance by the Company with all of
the provisions of the Securities, the Indenture and this Agreement and the consummation of
the transactions herein and therein contemplated (i) 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 or any its Designated Subsidiaries is a party or by which the Company or
any of its subsidiaries is bound or to which any of the property or assets of the Company
or any of its Designated Subsidiaries is subject, (ii) will not result in any violation of
the provisions of the Articles of Incorporation or By-laws of the Company or the
organizational documents of any of its Designated Subsidiaries, (iii) will not result in
any violation of 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 Designated Subsidiaries
or any of their properties, except, with respect to clauses (i) and (iii), for such
conflicts, breaches, violations or defaults which would not, individually or in the
aggregate, have a Material Adverse Effect and would not adversely affect the validity or
performance of the Company’s obligations under the Securities, the Indenture and this
Agreement; and no consent, approval, authorization, order, registration or qualification of
or with any
-6-
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 the Indenture 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 Securities by the Underwriters;
(n) Neither the Company nor any of its Designated Subsidiaries is (i) in violation of
its Articles of Incorporation or By-laws or the other organizational documents or (ii) in
default in the performance or observance of any obligation, covenant or condition contained
in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its properties may be bound,
except, with respect to clause (ii), for such defaults that would not, individually or in
the aggregate, have a Material Adverse Effect;
(o) The statements set forth in the Pricing Prospectus and Prospectus under the
captions “Description of Debt Securities” and “Description of the Notes”, insofar as they
purport to constitute a summary of the terms of the Securities, and under the captions
“Plan of Distribution” and “Underwriting”, insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate, complete and fair
in all material respects;
(p) Other than as set forth in the Pricing Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its Designated Subsidiaries
is a party or of which any property of the Company or any of its Designated Subsidiaries is
the subject which, would be reasonably expected to have, individually or in the aggregate,
a Material Adverse Effect or would materially and adversely affect the ability of the
Company to perform its obligations under the Securities, the Indenture and this Agreement;
and, to the best of the Company’s knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others, other than as set forth
in the Pricing Prospectus;
(q) The Company is not and, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof, will not be an “investment
company”, as such term is defined in the Investment Company Act of 1940, as amended (the
“Investment Company Act”);
(r) (A) (i) At the time of filing the Registration Statement, (ii) at the time of the
most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the
Act (whether such amendment was by post-effective amendment, incorporated report filed
pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), and (iii) at
the time the Company or any person acting on its behalf (within the meaning, for this
clause only, of Rule 163(c) under the Act) made any offer relating to the Securities in
reliance on the exemption of Rule 163 under the Act, the Company was a “well-known seasoned
issuer” as defined in Rule 405 under the Act; and (B) at the earliest time after the
-7-
filing of the Registration Statement that the Company or another offering participant
made a bona fide offer (within the meaning of Rule 164(h)(2) under the Act) of the
Securities, the Company was not an “ineligible issuer” as defined in Rule 405 under the
Act;
(s) KPMG LLP, who have audited certain financial statements of the Company and its
subsidiaries, and have audited the effectiveness of the Company’s internal control over
financial reporting, are independent public accountants as required by the Act and the
rules and regulations of the Commission thereunder;
(t) The Company maintains a system of internal control over financial reporting (as
such term is defined in Rule 13a-15(f) under the Exchange Act) that complies with the
requirements of the Exchange Act and has been designed by the Company’s principal executive
officer and principal financial officer, or under their supervision, to provide reasonable
assurance regarding the reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with generally accepted accounting
principles. The Company’s internal control over financial reporting is effective and the
Company is not aware of any material weaknesses in its internal control over financial
reporting;
(u) Since the date of the latest audited financial statements included or incorporated
by reference in the Pricing Prospectus, there has been no change in the Company’s internal
control over financial reporting that has materially affected, or is reasonably likely to
materially affect, the Company’s internal control over financial reporting;
(v) The Company maintains disclosure controls and procedures (as such term is defined
in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange
Act; such disclosure controls and procedures have been designed to ensure that material
information relating to the Company and its subsidiaries is made known to the Company’s
principal executive officer and principal financial officer by others within those
entities; and such disclosure controls and procedures are effective;
(w) Neither the Company nor any of its subsidiaries nor, to the best knowledge of the
Company, any director, officer, agent, employee or other person associated with or acting
on behalf of the Company or any of its subsidiaries has (i) used any corporate funds for
any unlawful contribution, gift, entertainment or other unlawful expense relating to
political activity; (ii) made any direct or indirect unlawful payment to any foreign or
domestic government official or employee from corporate funds; (iii) violated or is in
violation of any provision of the Foreign Corrupt Practices Act of 1977; or (iv) made any
bribe, rebate, payoff, influence payment, kickback or other unlawful payment;
(x) The operations of the Company and its subsidiaries are and have been conducted at
all times in compliance with applicable financial recordkeeping and reporting requirements
of the Currency and Foreign Transactions Reporting
-8-
Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules
and regulations thereunder and any related or similar rules, regulations or guidelines,
issued, administered or enforced by any governmental agency (collectively, the “Money
Laundering Laws”) and no action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company or any of its
subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge
of the Company, threatened; and
(y) None of the Company, any of its subsidiaries or, to the knowledge of the Company,
any director, officer, agent, employee or affiliate of the Company or any of its
subsidiaries is currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”); and the Company
will not directly or indirectly use the proceeds of the offering of the Securities
hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary,
joint venture partner or other person or entity, for the purpose of financing the
activities of any person currently subject to any U.S. sanctions administered by OFAC.
2. Subject to the terms and conditions herein set forth, 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 a purchase price of 99.35% of the principal amount thereof, plus
accrued interest, if any, from May 21, 2009 to the Time of Delivery (as defined below) hereunder,
the principal amount of Securities set forth opposite the name of such Underwriter in Schedule I
hereto.
3. Upon the authorization by you of the release of the Securities, the several Underwriters
propose to offer the Securities for sale upon the terms and conditions set forth in the Prospectus.
4. (a) The Securities to be purchased by each Underwriter hereunder will be represented by one
or more definitive global Securities in book-entry form which will be deposited by or on behalf of
the Company with The Depository Trust Company (“DTC”) or its designated custodian. The Company will
deliver the Securities to the Representatives, for the account of each Underwriter, against payment
by or on behalf of such Underwriter of the purchase price therefor by wire transfer of Federal
(same-day) funds to the account specified by the Company to the Representatives at least
forty-eight hours in advance. The Company will cause the certificates representing the Securities
to be made available to the Representatives for checking at least twenty-four hours prior to the
Time of Delivery (as defined below) at the office of DTC or its designated custodian (the
“Designated Office”). The time and date of such delivery and payment shall be 9:30 a.m., New York
City time, on May 21, 2009, or such other time and date as the Representatives and the Company may
agree upon in writing. Such time and date are herein called the “Time of Delivery”.
(b) The documents to be delivered at the Time of Delivery by or on behalf of the parties
hereto pursuant to Section 8 hereof, including the cross-receipt for the Securities and any
additional documents requested by the Underwriters pursuant to Section 8(j) hereof, will be
delivered at the offices of Xxxxxxxx & Xxxxxxxx LLP, 000 Xxxxx
-0-
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the “Closing Location”), and the Securities will be
delivered at the Designated Office, all at the Time of Delivery. A meeting will be held at the
Closing Location at 3:00 p.m., New York City time, on the New York Business Day next preceding the
Time of Delivery, at which meeting the final drafts of the documents to be delivered pursuant to
the preceding sentence will be available for review by the parties hereto. For the purposes of
this Section 4, “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 City are generally authorized
or obligated by law or executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you 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 date of this Agreement; to make no further amendment or any supplement
to the Registration Statement, the Basic Prospectus or the Prospectus prior to the Time of Delivery
which shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly
after it receives notice thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any amendment or supplement to the Prospectus has been filed and
to furnish you with copies thereof; to prepare a final term sheet, containing solely a description
of the Securities, in a form approved by you and to file such term sheet pursuant to Rule 433(d)
under the Act within the time required by such Rule; to file promptly all other material required
to be filed by the Company with the Commission pursuant to Rule 433(d) under the Act; to file
promptly all reports and any definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and for so long as the delivery of a prospectus (or in
lieu thereof, the notice referred to in Rule 173(a) under the Act) is required in connection with
the offering or sale of the Securities; to advise you, promptly after it receives notice thereof,
of the issuance by the Commission of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or other prospectus in respect of the Securities, of any notice
of objection of the Commission to the use of the Registration Statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Act, of the suspension of the qualification
of the 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 the Prospectus or for additional information; and,
in the event of the issuance of any stop order or of any order preventing or suspending the use of
any Preliminary Prospectus or other prospectus or suspending any such qualification, to promptly
use its best efforts to obtain the withdrawal of such order; and in the event of any such issuance
of a notice of objection, promptly to take such steps including, without limitation, amending the
Registration Statement or filing a new registration statement, at its own expense, as may be
necessary to permit offers and sales of the Securities by the Underwriters (references herein to
the Registration Statement shall include any such amendment or new registration statement);
(b) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a form
approved by you and to file such form of prospectus pursuant to Rule 424(b)
-10-
under the Act not later than may be required by Rule 424(b) under the Act; and to make no
further amendment or supplement to such form of prospectus which shall be disapproved by you
promptly after reasonable notice thereof;
(c) If by the third anniversary (the “Renewal Deadline”) of the initial effective date of the
Registration Statement, any of the Securities remain unsold by the Underwriters, the Company will
file, if it has not already done so and is eligible to do so, a new automatic shelf registration
statement relating to the Securities, in a form satisfactory to you. If at the Renewal Deadline
the Company is no longer eligible to file an automatic shelf registration statement and the
distribution of the Securities has not been completed, the Company will, if it has not already done
so, file a new shelf registration statement relating to the Securities, in a form satisfactory to
you and will use its commercially reasonable efforts to cause such registration statement to be
declared effective within 180 days after the Renewal Deadline. The Company will take all other
action necessary or appropriate to permit the public offering and sale of the Securities to
continue as contemplated in the expired registration statement relating to the Securities.
References herein to the Registration Statement shall include such new automatic shelf registration
statement or such new shelf registration statement, as the case may be;
(d) Promptly from time to time to take such action as you may reasonably request to qualify
the Securities for offering and sale under the securities laws of such jurisdictions as you 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 the
Securities, provided that in connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process in any jurisdiction or to
take any action that would subject it to taxation in any jurisdiction where it is not now so
subject;
(e) Prior to 10:00 a.m., New York City time, on the New York Business Day next succeeding the
date of this Agreement and from time to time, to furnish the Underwriters with written and
electronic copies of the Prospectus in New York City in such quantities as you may reasonably
request, and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) is required at any time prior to the expiration of nine months after the time
of issue of the Prospectus 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 (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) 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 you and upon your request to file such
document and to prepare and furnish without charge to each Underwriter and to any dealer in
securities as many written and electronic copies as you 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; and in case any Underwriter is required to deliver a prospectus
(or in lieu thereof, the notice referred to in Rule 173(a)
-11-
under the Act) in connection with sales of any of the Securities at any time nine months or
more after the time of issue of the Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many written and electronic copies as
you may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the
Act;
(f) To make generally available to its securityholders as soon as practicable, but in any
event not later than sixteen months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), 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);
(g) During the period beginning from the date hereof and continuing to and including the later
of the Time of Delivery and such earlier time as you may notify the Company, not to offer, sell,
contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose
of, except as provided hereunder, any securities of the Company or its subsidiaries that are
substantially similar to the Securities;
(h) To pay the required Commission filing fees relating to the Securities within the time
required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in
accordance with Rules 456(b) and 457(r) under the Act;
(i) To use the net proceeds received by it from the sale of the Securities pursuant to this
Agreement in the manner specified in the Pricing Prospectus under the caption “Use of Proceeds”;
and
(j) Upon request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter
an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the
website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering
of the Securities (the “License”); provided, however, that the License shall be used solely for the
purpose described above, is granted without any fee and may not be assigned or transferred.
6. (a) The Company represents and agrees that, other than the final term sheet prepared and
filed pursuant to Section 5(a) hereof, without the prior consent of the Representatives, it has not
made and will not make any offer relating to the Securities that would constitute a “free writing
prospectus” as defined in Rule 405 under the Act; each Underwriter represents and agrees that,
without the prior consent of the Company and the Representatives, other than one or more term
sheets relating to the Securities containing customary information and conveyed to purchasers of
Securities, it has not made and will not make any offer relating to the Securities that would
constitute a free writing prospectus; and any such free writing prospectus the use of which has
been consented to by the Company and the Representatives (including the final term sheet prepared
and filed pursuant to Section 5(a) hereof) is listed on Schedule II(a) hereto. The Company also
consents to the use by any Underwriter of a free writing prospectus that (a) is not an “issuer free
writing prospectus” as defined in Rule 433 and (b) contains only (i) information describing the
preliminary terms of the Notes or their offering, (ii) information that describes the final terms
of the Notes or their offering and
-12-
that is included in the final term sheet contemplated in Section 5(a) hereof or (iii) contains
comparable bond price or similar information that (in the case of this clause (iii) only) is not
“issuer information,” as defined in Rule 433;
(b) The Company has complied and will comply with the requirements of Rule 433 under the Act
applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or
retention where required and legending; and
(c) The Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus
would conflict with the information in the Registration Statement, the Pricing Prospectus or the
Prospectus or 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 then
prevailing, not misleading, the Company will give prompt notice thereof to the Representatives and,
if requested by the Representatives, will prepare and furnish without charge to each Underwriter an
Issuer Free Writing Prospectus or other document which will correct such conflict, statement or
omission; provided, however, that this representation and warranty shall not apply to any
statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in
conformity with information furnished in writing to the Company by an Underwriter through the
Representatives expressly for use therein.
7. 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, reproduction and filing of the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus, any Issuer Free Writing 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, the Indenture, the Blue Sky Memorandum, closing documents (including
any compilations thereof) 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(d) hereof,
including the fees and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky survey; (iv) any fees charged by securities
rating services for rating the Securities; (v) the cost of preparing the Securities; (vi) the fees
and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel
for the Trustee in connection with the Indenture and the Securities; and (vii) all other costs and
expenses incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that, except as provided in
this Section, and Sections 9 and 12 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.
8. The obligations of the Underwriters hereunder shall be subject, in their discretion, to the
condition that all representations and warranties and other statements
-13-
of the Company herein are, at and as of the Time of Delivery, true and correct, the condition
that the Company shall have performed all of its obligations hereunder theretofore to be performed,
and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the
Act within the applicable time period prescribed for such filing by the rules and regulations under
the Act and in accordance with Section 5(a) hereof; the final term sheet contemplated by Section
5(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d)
under the Act, shall have been filed with the Commission within the applicable time periods
prescribed for such filings by Rule 433; 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 no notice of objection of the
Commission to the use of the Registration Statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or
preventing the use of the Prospectus or any Issuer Free Writing Prospectus 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 your reasonable satisfaction;
(b) Xxxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, shall have furnished to you such
written opinion or opinions, dated the Time of Delivery, with respect to such matters as you 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. In rendering such opinion, Xxxxxxxx &
Xxxxxxxx LLP may rely as to matters of Georgia law upon the opinion of Xxxx X. Xxxxxxxxxx, Esq.,
referred to in Section 8(d) hereof;
(c) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Company, shall have furnished to
you their written opinion (a draft of such opinion is attached hereto as Annex II), dated the Time
of Delivery, in form and substance satisfactory to you.
(d) Xxxx X. Xxxxxxxxxx, Esq., Executive Vice President, Secretary and General Counsel of the
Company, shall have furnished to you his written opinion (a draft of such opinion is attached
hereto as Annex III), dated the Time of Delivery, in form and substance satisfactory to you.
(e) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30
a.m., New York City time, on the effective date of any post effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at the Time of Delivery, KPMG LLP
shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in
form and substance satisfactory to you, to the effect set forth in Annex I hereto (the executed
copy of the letter delivered prior to the execution of this Agreement is attached as Annex I(a)
hereto and a form of letter to be delivered on the effective date of any post-effective amendment
to the Registration Statement, and as of the Time of Delivery is attached as Annex I(b) hereto);
(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
-14-
reference in the Pricing Prospectus 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 governmental action, order or decree, otherwise than as set forth or contemplated in
the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the
Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of
the Company or any of its subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial position, shareholders’ equity
or results of operations of the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause
(i) or (ii), is in your judgment so material and adverse as to make it impracticable or inadvisable
to proceed with the public offering or the delivery of the Securities on the terms and in the
manner contemplated in the Prospectus;
(g) On or after the Applicable Time (i) no downgrading shall have occurred in the rating
accorded the Company’s debt securities or the Company’s financial strength or claims paying ability
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 the Company’s financial strength or claims
paying ability;
(h) On or after the Applicable Time 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
or on the Tokyo Stock Exchange; (ii) a suspension or material limitation in trading in the
Company’s securities on the New York Stock Exchange or the Tokyo Stock Exchange; (iii) a general
moratorium on commercial banking activities declared by either Federal or New York State
authorities or a material disruption in commercial banking or securities settlement or clearance
services in the United States; (iv) the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national emergency or war or (v) the occurrence
of any other calamity or crisis or any change in financial, political or economic conditions in the
United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in your
judgment makes it impracticable or inadvisable to proceed with the public offering or the delivery
of the Securities on the terms and in the manner contemplated in the Prospectus;
(i) The Company shall have complied with the provisions of Section 5(e) hereof with respect to
the furnishing of prospectuses on the New York Business Day next succeeding the date of this
Agreement; and
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery
certificates of officers of the Company satisfactory to you as to the accuracy of the
representations and warranties of the Company herein at and as of such time, as to the performance
by the Company of all of its obligations hereunder to be performed at or prior to such time, as to
the matters set forth in subsections (a) and (f) of this Section and as to such other matters as
you may reasonably request.
-15-
9. (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 the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, any
Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant
to Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing
Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing
Prospectus, in reliance upon and in conformity with written information furnished to the Company by
any Underwriter through the Representatives expressly for use therein.
(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 the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or
the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, or
arise out of or are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not misleading, 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 the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus or any such amendment or
supplement thereto, or any Issuer Free Writing Prospectus, 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
-16-
to participate therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party (who shall not, except with the consent of the indemnified party, be counsel
to the indemnifying party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall not be liable to
such indemnified party under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying party shall, without
the written consent of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or claim in respect of
which indemnification or contribution may be sought hereunder (whether or not the indemnified party
is an actual or potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all liability arising
out of such action or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9 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 on the other from the offering of the Securities. 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 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 the Underwriters on the other shall be deemed to be in
the same proportion as the total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company on the one hand or the 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
-17-
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
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
Underwriters’ obligations in this subsection (d) to contribute are several in proportion to their
respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability
which the Company may otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act and each broker-dealer
affiliate of any Underwriter; and the obligations of the Underwriters under this Section 9 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.
10. (a) If any Underwriter shall default in its obligation to purchase the Securities which it
has agreed to purchase hereunder, you may in your discretion arrange for you or another party or
other parties to purchase such Securities on the terms contained herein. If within thirty six
hours after such default by any Underwriter you do not arrange for the purchase of such 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 you to purchase such Securities on such terms. In
the event that, within the respective prescribed periods, you notify the Company that you have so
arranged for the purchase of such Securities, or the Company notifies you that it has so arranged
for the purchase of such Securities, you or the Company shall have the right to postpone the Time
of Delivery 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, 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 your opinion 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 this Agreement with
respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a) above,
the aggregate principal amount of such Securities which remains unpurchased does not exceed one
eleventh of the aggregate principal amount of all the Securities, then the Company shall have the
right to require each non-defaulting Underwriter to purchase the principal amount of Securities
which such Underwriter agreed to purchase hereunder and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the principal amount of
-18-
Securities which such Underwriter agreed to purchase hereunder) of the Securities 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 Securities of a
defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a) above,
the aggregate principal amount of Securities which remains unpurchased exceeds one eleventh of the
aggregate principal amount of all the Securities, or if the Company shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to purchase Securities of
a defaulting Underwriter or Underwriters, then this Agreement 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 7 hereof and the indemnity and
contribution agreements in Section 9 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
11. 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.
12. If this Agreement shall be terminated pursuant to Section 10 hereof, the Company shall not
then be under any liability to any Underwriter except as provided in Sections 7 and 9 hereof; but,
if for any other reason, the Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through you for all out of pocket
expenses approved in writing by you, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and delivery of the
Securities, but the Company shall then be under no further liability to any Underwriter except as
provided in Sections 7 and 9 hereof.
13. In all dealings hereunder, you shall act on behalf of each of the 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 the Representatives jointly.
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 Xxxxxxx, Xxxxx
& Co. at 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration Department;
and to X.X. Xxxxxx Securities Inc., at 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: High Grade Syndicate Desk; 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 9(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters’
-19-
Questionnaire, or telex constituting such Questionnaire, which address will be supplied to the
Company by you upon request. Any such statements, requests, notices or agreements shall take
effect upon receipt thereof.
In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record
information that identifies their respective clients, including the Company, which information may
include the name and address of their respective clients, as well as other information that will
allow the Underwriters to properly identify their respective clients.
14. This Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters, the Company and, to the extent provided in Sections 9 and 11 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. No purchaser of any of the
Securities from any Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
15. Time shall be of the essence of this Agreement. As used herein, the term “business day”
shall mean any day when the Commission’s office in Washington, D.C. is open for business.
16. The Company acknowledges and agrees that (i) the purchase and sale of the Securities
pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the
one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the
process leading to such transaction each Underwriter is acting solely as a principal and not the
agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory or fiduciary
responsibility in favor of the Company with respect to the offering contemplated hereby or the
process leading thereto (irrespective of whether such Underwriter has advised or is currently
advising the Company on other matters) or any other obligation to the Company except the
obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal
and financial advisors to the extent it deemed appropriate. The Company agrees that it will not
claim that the Underwriters, or any of them, has rendered advisory services of any nature or
respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or
the process leading thereto.
17. This Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company and the Underwriters, or any of them, with respect to the subject matter
hereof.
18. This Agreement shall be governed by and construed in accordance with the laws of the State
of New York.
19. The Company and each of the Underwriters hereby irrevocably waives, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby.
-20-
20. This Agreement may be executed by any one or more of the parties hereto in any number of
counterparts, each of which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
21. Notwithstanding anything herein to the contrary, the Company is authorized to disclose to
any persons the U.S. federal and state income tax treatment and tax structure of the potential
transaction and all materials of any kind (including tax opinions and other tax analyses) provided
to the Company relating to that treatment and structure, without the Underwriters’ imposing any
limitation of any kind. However, any information relating to the tax treatment and tax structure
shall remain confidential (and the foregoing sentence shall not apply) to the extent necessary to
enable any person to comply with securities laws. For this purpose, “tax structure” is limited to
any facts that may be relevant to that treatment.
-21-
If the foregoing is in accordance with your understanding, please sign and return to us six
counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the Underwriters,
this letter and such acceptance hereof 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 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 your part as to the authority of the signers thereof.
-22-
| Very truly yours, Aflac Incorporated |
||||
| By: | /s/ Xxxxx Xxxxxxxxx III | |||
| Name: | Xxxxx Xxxxxxxxx III | |||
| Title: | President and Chief Financial Officer | |||
| Accepted as of the date hereof: Xxxxxxx, Xxxxx & Co. |
||||
| By: | /s/ Xxxxxxx, Sachs & Co. | |||
| (Xxxxxxx, Xxxxx & Co.) | ||||
| X.X. Xxxxxx Securities Inc. |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Executive Director | |||
On behalf of each of the Underwriters
-23-
SCHEDULE I
| Principal Amount | ||||
| of Securities to be | ||||
| Underwriter | Purchased | |||
Xxxxxxx, Xxxxx & Co. |
$ | 382,500,000 | ||
X.X. Xxxxxx Securities Inc. |
382,500,000 | |||
Banc of America Securities LLC |
42,500,000 | |||
Sandler X’Xxxxx & Partners, L.P. |
42,500,000 | |||
Total |
$ | 850,000,000 | ||
SCHEDULE II
| (a) | Issuer Free Writing Prospectuses not included in the Pricing Disclosure Package: |
The electronic “road show”, dated May 18, 2009, relating to the Securities.
| (b) | Additional Documents Incorporated by Reference: |
None.
