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EXHIBIT 1
Jefferson-Pilot Corporation
DEBT SECURITIES
Underwriting Agreement
, 1995
To the Representatives of the
several Underwriters named in the
respective Pricing Agreements
hereinafter described.
Ladies and Gentlemen:
From time to time Jefferson-Pilot Corporation, a North Carolina
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 "Designated
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 an
Underwriter or Underwriters who act without any firm being designated as
its or their representatives. 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 shall specify the
aggregate principal amount of such Designated Securities, the initial
public offering price of such Designated Securities, the purchase price to
the Underwriters of such Designated Securities, the names of the
Underwriters of such Designated Securities, the names of the
Representatives of such Underwriters and the principal amount of such
Designated Securities to be purchased by each Underwriter and shall set
forth the date, time and manner of delivery of such Designated Securities
and payment therefor. The Pricing Agreement shall also specify (to the
extent not set forth in the Indenture and the registration statement and
prospectus with respect thereto) the terms of such Designated
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Securities. 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 (File No. 33-63521)
(the "Initial Registration Statement") in respect of the Securities
has been filed with the Securities and Exchange Commission (the
"Commission"); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore
delivered or to be delivered to the Representatives and, excluding
exhibits to such registration statement, but including all documents
incorporated by reference in the prospectus contained therein, to the
Representatives for each of the other Underwriters, have 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
the Initial Registration Statement or document incorporated by
reference therein has heretofore been filed or transmitted for filing
with the Commission (other than prospectuses filed pursuant to Rule
424(b) of the rules and regulations of the Commission under the Act,
each in the form heretofore delivered to the Representatives); and no
stop order suspending the effectiveness of the Initial 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 the Initial Registration Statement
or filed with the Commission pursuant to Rule 424(a) under the Act,
is hereinafter called a "Preliminary Prospectus"; the various parts
of the Initial 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 the Initial Registration Statement at the time such part of the
registration statement became effective but excluding Form T-1, each
as amended at the time such part of the registration statement became
effective or such part of the Rule 462(b) Registration Statement, if
any, became or hereafter becomes effective, are hereinafter
collectively 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, being 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 Sections 13(a) or
15(d) of the
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Exchange Act after the effective date of the Registration Statement
that is incorporated by reference in the Registration Statement; and
any reference to the Prospectus as amended or supplemented shall be
deemed to refer to the Prospectus as amended or supplemented in
relation to the applicable Designated Securities in the form in which
it is filed with the Commission pursuant to Rule 424(b) under the Act
in accordance with Section 5(a) hereof, including any documents
incorporated by reference therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the 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, in light of the circumstances under which
they were made, 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, 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;
(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, 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)(i) Neither the Company nor any of its subsidiaries named in
Schedule III hereto (each, a "Material Subsidiary" and collectively,
the "Material 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
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contemplated in the Prospectus; and, since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock (other
than as a result of the Company's employee and director stock option
and stock repurchase programs) or increases in long-term debt of, or
guaranteed by, the Company or any of its 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 subsidiaries considered as a whole, otherwise
than as set forth or contemplated in the Prospectus; and
(ii) without limitation of the foregoing Section 2(d)(i), since
the respective dates as of which information is given in the
Prospectus, there has not been any material adverse change, or any
development involving a prospective material adverse change, (x) in
or affecting the Company's and its subsidiaries' consolidated
investments, including, without limitation, third party mortgage
loans, or other real estate investments, or (y) in or affecting the
Company's and its subsidiaries' contingent funding commitments (on a
consolidated basis), other than in either case (x) or (y) above 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
State of North Carolina, 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, or is subject to no material liability or disability
by reason of the failure to be so qualified in any such jurisdiction;
each of the Material 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 Prospectus, and has been duly qualified for the
transaction of business and is in good standing as a foreign
corporation under the laws of each other jurisdiction in which it
owns or leases property or conducts any business, so as to require
such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction; and each other subsidiary of the Company has been duly
incorporated and is validly existing as a corporation and is in good
standing under the laws of its jurisdiction of incorporation;
(f) Each of Jefferson-Pilot Life Insurance Company and Xxxxxxxxx
Xxxxxxxx Life Insurance Company of America (together, the "Insurance
Subsidiaries") is duly licensed as an insurance company in the
jurisdiction of its incorporation and is duly licensed or authorized
as an insurer or reinsurer in each other jurisdiction where it is
required to be so licensed or authorized to conduct its business as
described in the Prospectus, except, with respect to such other
jurisdictions, where the failure to be so licensed or authorized
would not have a material adverse effect on the current or future
consolidated financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, considered as a whole
(a "Material Adverse Effect"); the Company has made all required
filings under the applicable insurance holding company statutes of
the State of North Carolina and each other state or jurisdiction in
which the Company is required to make
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such filings, and is duly licensed or admitted as an insurance
holding company in each jurisdiction where it is required to be so
licensed or admitted to conduct its business as described in the
Prospectus, except, with respect to such other jurisdictions, where
the failure to be so licensed or admitted would not have a Material
Adverse Effect; each of the Company and the Insurance Subsidiaries
has all other necessary authorizations, approvals, orders, consents,
licenses, certificates, permits, registrations and qualifications
("Approvals") of and from all insurance authorities, commissions or
other insurance regulatory bodies to conduct its business as
described in the Prospectus (other than certain Approvals required in
connection with the Company's purchase of Xxxxxxxxx Xxxxxxxx Life
Insurance Company of America ("Xxxxxxxxx Xxxxxxxx"), with respect to
which assurances have been obtained), except where the failure to
have such Approvals would not have a Material Adverse Effect; and
none of the Company or any Insurance Subsidiary has received any
notification from any insurance authority, commission or other
insurance regulatory body in the United States or elsewhere to the
effect that any additional Approval from such authority, commission
or body is needed to be obtained by the Company or any Insurance
Subsidiary (other than certain Approvals required in connection with
the Company's purchase of Xxxxxxxxx Xxxxxxxx, with respect to which
assurances have been obtained) in any case where it could be
reasonably expected that the Company or any Insurance Subsidiary
would in fact be required either to obtain any such additional
Approval or cease or otherwise limit writing certain business and
ceasing or limiting such business would, or prospectively could, have
a Material Adverse Effect;
(g) Each of the Company and the Insurance Subsidiaries is in
compliance with the requirements of the insurance law of the
jurisdiction of its incorporation and any applicable regulations
thereunder and has filed all notices, reports, documents or other
information ("Notices") required to be filed thereunder; and each of
the Company and the Insurance Subsidiaries is in compliance with the
insurance laws and regulations of other jurisdictions which are
applicable to the Company and the Insurance Subsidiaries (as the case
may be) and has filed all Notices required to be filed thereunder,
except where the failure to comply or file would not have a Material
Adverse Effect;
(h) Without limiting the foregoing, each of the Company and the
Insurance Subsidiaries has filed all Notices required to be filed
pursuant to, and has obtained all Approvals required to be obtained
under, and has otherwise complied with all requirements of, all
applicable insurance laws and regulations in connection with the
issuance and sale of the Securities;
(i) 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 non-assessable and conform to the description of the
Common Stock contained in the Prospectus; 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 (except for directors' qualifying shares and
except as set forth in the Prospectus) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims;
(j) The Securities have been duly authorized, and, when
Designated Securities are issued and delivered pursuant to this
Agreement and the Pricing Agreement with respect to such Designated
Securities, such Designated Securities will have been duly executed,
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authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company 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, to
the descriptions thereof contained in the Prospectus as amended or
supplemented with respect to such Designated Securities;
(k) The issue and sale of the Securities and the compliance by
the Company with all of the provisions of the Securities, the
Indenture, this Agreement and any Pricing Agreement, 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 material agreement
or instrument to which the Company is a party or by which the Company
is bound or to which any of the property or assets of the Company is
subject, nor will such action result in any violation of the
provisions of the Articles of Incorporation or By-laws of the Company
or any statute or any order, rule or regulation of any court,
insurance regulatory authority or other governmental agency or body
having jurisdiction over the Company or any of its subsidiaries or
any of their properties; and no consent, approval, authorization,
order, registration or qualification of or with any such court,
insurance regulatory authority or other 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 the Indenture, 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 by the Underwriters
or state laws relating to the payment of dividends by insurance
company subsidiaries;
(l) The statements set forth in the Prospectus under the
captions "Description of Debt Securities" and "Description of
Warrants", insofar as they purport to constitute a summary of the
terms of the Securities, and under the caption "Plan of
Distribution", 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;
(m) Neither the Company nor any of its Material Subsidiaries
is in violation of its Articles of Incorporation or By-laws or in
default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture, deed of
trust, loan agreement, note or other material instrument, contract,
mortgage or lease to which it is a party or by which it or any of its
properties may be bound;
(n) 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 could
individually or in the aggregate reasonably be expected to have a
Material Adverse Effect;
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and, to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened
by others;
(o) The Company is not and, after giving effect to the offering
and sale of the Securities, will not be an "investment company" or an
entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(p) Neither the Company nor any of its affiliates does business
with the government of Cuba or with any person or affiliate located
in Cuba within the meaning of Section 517.075, Florida Statutes;
(q) The description of the Company's reserves and reserving
methodology and assumptions set forth in the Prospectus is accurate
and fairly presents the information set forth therein in all material
respects; and
(r) Each of McGladrey & Xxxxxx, LLP, who have certified certain
financial statements of the Company and its subsidiaries, and Xxxxxx
Xxxxxxxx, LLP, who have certified certain combined financial
statements of Xxxxxxxxx Xxxxxxxx, First Alexander Life Insurance
Company and Xxxxxxxxx Xxxxxxxx Capital Management, Inc., are, to the
best of the Company's knowledge, independent public accountants as
required by the Act and the rules and regulations of the Commission
thereunder.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the
release of such Designated Securities, the several Underwriters propose to
offer such Designated Securities for sale upon the terms and conditions set
forth in the Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in the form specified
in such Pricing Agreement, and 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, 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 certified or official bank check or checks,
payable to the order of the Company in the funds specified in such Pricing
Agreement, all in the manner and 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 "Time of Delivery" for such Securities.
5. The Company agrees with each of the Underwriters of any
Designated Securities:
(a) To prepare the Prospectus as amended or 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 shall be reasonably disapproved by the Representatives for such
Securities promptly after reasonable notice thereof; to advise the
Representatives promptly
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of any such amendment or supplement after such Time of Delivery and
furnish the Representatives with copies thereof; to file promptly all
reports and any definitive proxy or information statements required
to be filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required in connection with the offering
or sale of such Securities, and during such same period to advise the
Representatives, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been filed
or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed with the Commission, of the
issuance by the Commission of any stop order or of any order
preventing or suspending the use of any prospectus relating to the
Securities, of the suspension of the qualification of such Securities
for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request
by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information;
and, in the event of the issuance of any such stop order or of any
such order preventing or suspending the use of any prospectus
relating to the Securities or suspending any such qualification, to
promptly use its best efforts to obtain the withdrawal of such order;
(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 reasonably 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, on the New York
Business Day next succeeding the date of the Pricing Agreement and
from time to time, to furnish the Underwriters with copies of the
Prospectus in New York City as amended or supplemented in such
quantities as the Representatives may 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 securityholders as soon
as practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement
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(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); and
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and
including the later of (i) the termination of trading restrictions
for such Designated Securities, as notified to the Company by the
Representatives and (ii) the Time of Delivery for such Designated
Securities, not to offer, sell, contract to sell or otherwise dispose
of any debt securities of the Company which mature more than one year
after such Time of Delivery and which are substantially similar to
such Designated Securities, without the prior written consent of the
Representatives.
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 Blue Sky and Legal Investment Memoranda,
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(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, and the fees and disbursements of counsel for the
Underwriters in connection with, 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 and any agent of any Trustee and the fees and
disbursements of counsel for any Trustee in connection with any Indenture
and the Securities; and (viii) 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 8 and 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 the Time of
Delivery for such Designated Securities, 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 as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations
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under the Act and in accordance with Section 5(a) hereof; no stop
order suspending the effectiveness of the Registration Statement or
any part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission;
and all requests for additional information on the part of the
Commission shall have been complied with to the Representatives'
reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions (a draft of each such
opinion is attached as Annex IV(a) hereto), dated the Time of
Delivery for such Designated Securities, with respect to the
incorporation of the Company, the validity of the Designated
Securities being delivered at such Time of Delivery, the Registration
Statement, the Prospectus and such 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) Counsel for the Company reasonably satisfactory to the
Representatives shall have furnished to the Representatives their
written opinion (a draft of such opinion is attached as Annex IV(b)
hereto), dated the Time of Delivery for such Designated Securities,
in form and substance satisfactory to the Representatives, to the
effect that:
(i) Each of the Company and its Material Subsidiaries 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 substantially 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
non-assessable;
(iii) All of the issued shares of capital stock of each
Material Subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and
(except for directors' qualifying shares and except as set
forth in the Prospectus) are owned directly or indirectly by
the Company, free and clear of all liens, encumbrances,
equities or claims;
(iv) Each of the Insurance Subsidiaries is duly licensed
as an insurance company in the jurisdiction of its
incorporation and is duly licensed or authorized as an insurer
or reinsurer in each other jurisdiction where it is required to
be so licensed or authorized to conduct its business as
described in the Prospectus, except, with respect to such other
jurisdictions, where the failure to be so licensed or
authorized would not have a Material Adverse Effect; the
Company has made all required filings under the applicable
insurance holding company statutes of the State of North
Carolina and each other state or jurisdiction in which the
Company is required to make such filings, and is duly licensed
or admitted as an insurance holding company in each
jurisdiction where it is required to be so licensed or admitted
to conduct its business as described in the Prospectus, except,
with respect to such other jurisdictions, where the failure to
be so licensed or admitted would not have a Material Adverse
Effect; each of the Company and the Insurance
11
Subsidiaries has all other necessary Approvals of and from all
insurance authorities, commissions or other insurance
regulatory bodies to conduct its business substantially as
described in the Prospectus (other than certain Approvals
required in connection with the Company's purchase of Xxxxxxxxx
Xxxxxxxx, with respect to which assurances have been
obtained), except where to the failure to have such Approvals
would not have a Material Adverse Effect; and, to the best of
such counsel's knowledge after due investigation, none of the
Company or any Insurance Subsidiary has received any
notification from any insurance authority, commission or other
insurance regulatory body in the United States or elsewhere to
the effect that any additional Approval from such authority,
commission or body is needed to be obtained by the Company or
any Insurance Subsidiary (other than certain Approvals required
in connection with the Company's purchase of Xxxxxxxxx
Xxxxxxxx, with respect to which assurances have been obtained)
in any case where it could be reasonably expected that the
Company or any Insurance Subsidiary would in fact be required
either to obtain any such additional Approval or cease or
otherwise limit writing certain business and ceasing or
limiting such business would, or prospectively could, have a
Material Adverse Effect;
(v) Each of the Company and the Insurance Subsidiaries is
in substantial compliance with the requirements of the
insurance law of the jurisdiction of its incorporation and any
applicable regulations thereunder and has filed all Notices
required to be filed thereunder; each of the Company and the
Insurance Subsidiaries is in compliance with the insurance laws
and regulations of the States of California, Florida, New
Jersey, Ohio, Pennsylvania, South Carolina, Tennessee, Texas
and Virginia which are applicable to the Company and the
Insurance Subsidiaries (as the case may be) and has filed all
Notices required to be filed thereunder, except where the
failure to comply or file would not have a Material Adverse
Effect; and each of the Company and the Insurance Subsidiaries
has filed all Notices required to be filed pursuant to, and has
obtained all Approvals required to be obtained under, and has
otherwise complied with all requirements of, all applicable
insurance laws and regulations in connection with the issuance
and sale of the Securities;
(vi) Without limitation of the foregoing, the Company and
its subsidiaries, as applicable, have filed all Notices
required to be filed pursuant to, and have obtained all
Approvals required to be obtained under, any law or regulation
of the United States or the State of North Carolina or the
State of Michigan required for the issuance and sale by the
Company of the Securities, except for such Notices and
Approvals (i) as may be required under state securities,
insurance securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the
Representatives, or (ii) individually or in the aggregate, as
would not affect the transactions contemplated by this
Agreement or the Pricing Agreement; and no Approval of or with
any court or insurance regulatory agency or other governmental
agency or body having jurisdiction over the Company or any of
their properties known to such counsel 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 Pricing Agreement, except such Approvals (i) as may be
required
12
under state securities, insurance securities or Blue Sky laws
in connection with the purchase and distribution of the Securi-
ties by the Representatives, or (ii) in respect of which the
failure to obtain would neither affect the validity of the
Securities, their issuance or the transactions contemplated
hereby or subject the Company or the Company and its
subsidiaries, considered as a whole, to any material liability
or disability; and no insurance regulatory authority has
authority or jurisdiction to disapprove and/or prevent payments
of principal or interest on the Securities at the times
provided in the Securities;
(vii) The Company and its subsidiaries have good and
marketable title in fee simple to all real property owned by
them, in each case free and clear of all liens, encumbrances
and defects, and any real property and buildings held under
lease by the Company and its subsidiaries are held by them
under valid, subsisting and enforceable leases, except where
the failure to have such title or such leases would not have a
Material Adverse Effect;
(viii) 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 could
individually or in the aggregate reasonably be expected to have
a Material Adverse Effect; and, to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others;
(ix) This Agreement and the Pricing Agreement with respect
to the Designated Securities have been duly authorized,
executed and delivered by the Company;
(x) The Designated Securities have been duly authorized,
executed, authenticated, issued and delivered and constitute
valid and legally binding obligations of the Company entitled
to the benefits provided by the Indenture; and the Designated
Securities and the Indenture conform to the descriptions
thereof in the Prospectus as amended or supplemented;
(xi) The Indenture has been duly authorized, executed and
delivered by the parties thereto and constitutes 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 has been duly qualified under the
Trust Indenture Act;
(xii) 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, 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 material 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, nor will such actions result in any
violation of the provisions of the Articles of Incorporation or
By-laws of the
13
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;
(xiii) 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, except such as have been
obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, orders, 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 or state laws
relating to the payment of dividends by insurance company
subsidiaries;
(xiv) Neither the Company nor any of its Material
Subsidiaries is in violation of its By-laws or Articles of
Incorporation or in default in the performance or observance of
any material obligation, agreement, covenant or condition
contained in any indenture, deed of trust, loan agreement, note
or other material instrument, contract, mortgage or lease to
which it is a party or by which it or any of its properties may
be bound;
(xv) The statements set forth in the Prospectus under the
captions "Description of Debt Securities" and "Description of
Warrants" insofar as they purport to constitute a summary of
the terms of the Securities, and under the caption "Plan of
Distribution" and under any corresponding caption in any
supplement to the Prospectus, 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;
(xvi) The Company is not an "investment company" or an
entity "controlled" by an "investment company", as such terms
are defined in the Investment Company Act;
(xvii) 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 they have no
reason to believe that any of such documents, when they became
effective or were so filed, as the case may be, contained, in
the case of a registration statement which became effective
under the Act, an untrue statement of a material fact or
omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or,
in the case of other documents which were filed under the Act
or the Exchange Act with the Commission, an untrue statement of
a material fact or omitted to state a material fact necessary
in order to make the statements therein, in the light of the
14
circumstances under which they were made when such documents
were so filed, not misleading; and
(xviii) 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 and other financial
data 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; although they do not assume
any responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement or
the Prospectus, except for those referred to in the opinion in
subsection (x) of this Section 7(c), 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 the Time of Delivery (other than the financial
statements and related schedules and other financial data
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 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 the Time of Delivery (other than the financial
statements and related schedules and other financial data
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 necessary to make the statements therein,
in the light of the circumstances under which they were made,
not misleading or that, as of the 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 the Time of Delivery (other than
the financial statements and related schedules and other
financial data 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 necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading; and 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.
(d) On the date of the Pricing Agreement for such Designated
Securities at a time prior to the execution of the Pricing Agreement
with respect to such Designated Securities and at the Time of
Delivery for such Designated Securities, the independent accountants
who have certified the financial statements of the Company and its
subsidiaries included or incorporated by reference in the
Registration Statement 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
15
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 (the executed copy of the letter
delivered prior to the execution of this Agreement is attached as
Annex II(a) hereto and a draft of the form of letter to be delivered
on the effective date of any post-effective amendment to the
Registration Statement and as of each Time of Delivery is attached as
Annex II(b) hereto);
(e) (i) Neither the Company nor any of its Material Subsidiaries
shall have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus as
amended prior to the date of the Pricing Agreement relating to the
Designated Securities 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
Prospectus as amended prior to the date of the Pricing Agreement
relating to the Designated Securities, (ii) since the respective
dates as of which information is given in the Prospectus as amended
prior to the date of the Pricing Agreement relating to the Designated
Securities there shall not have been any change in the capital stock
(other than as a result of the Company's employee and director stock
option and stock repurchase programs) or increases in long-term debt
of, or guaranteed by, 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 considered as a whole, otherwise than as set forth or
contemplated in the Prospectus as amended prior to the date of the
Pricing Agreement relating to the Designated Securities, and
(iii) since the respective dates as of which information is given in
the Prospectus, there has not been any material adverse change, or
any development involving a prospective material adverse change, (x)
in or affecting the Company's and its subsidiaries' consolidated
investments, including, without limitation, third party mortgage
loans, or other real estate investments, or (y) in or affecting the
Company's and its subsidiaries' contingent funding commitments (on a
consolidated basis), other than in either case (x) or (y) above as
set forth or contemplated in the Prospectus; the effect of which, in
any such case described in Clause (i), (ii) or (iii) 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 first amended or
supplemented relating to the Designated Securities;
(f) 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
or the financial strength or claims paying ability of the Company,
Jefferson-Pilot Life Insurance Company or Xxxxxxxxx Xxxxxxxx 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 or the financial strength or claims paying ability of
the Company, Jefferson-Pilot Life Insurance Company or Xxxxxxxxx
Xxxxxxxx;
16
(g) 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 or material limitation in trading in the Company's
securities on the New York Stock Exchange; (iii) a general moratorium
on commercial banking activities declared by Federal or New York or
North Carolina State authorities; or (iv) the outbreak or escalation
of hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of any
such event specified in this Clause (iv) in the judgment of the
Representatives makes 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 first
amended or supplemented relating to the Designated Securities;
(h) The Company shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses on
the New York Business Day next succeeding the date of the Pricing
Agreement; and
(i) The Company shall have furnished or caused to be furnished
to the Representatives at the 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
such Time of Delivery, as to the performance by the Company of all of
its obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (e) 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 not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action
or claim as such expenses are incurred; provided, however, that the Company
shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made
in any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by any Underwriter of Designated Securities
through the Representatives expressly for use in the Prospectus as amended
or supplemented relating to such Securities.
(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)
17
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 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
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 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
18
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party
shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and the
Underwriters of the Designated Securities on the other in connection with
the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and such Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from such offering
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by such Underwriters. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or such Underwriters on
the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed
to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the applicable Designated
Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters of
Designated Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to
such Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, 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 Designated Securities which it has agreed to purchase under
the Pricing Agreement relating to such Designated Securities, the
Representatives may in their discretion arrange for themselves or another
party or other parties to purchase such Designated 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
Designated Securities, then the Company shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties
19
satisfactory to the Representatives to purchase such Designated 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 Designated Securities, or the Company notifies the
Representatives that it has so arranged for the purchase of such Designated
Securities, the Representatives or the Company shall have the right to
postpone the Time of Delivery for such Designated 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 Designated Securities of a defaulting Underwriter or Underwriters by
the Representatives and the Company as provided in subsection (a) above,
the aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount
of the Designated Securities, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the principal amount of
Designated Securities 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 principal amount of Designated Securities which such
Underwriter agreed to purchase under such Pricing Agreement) of the
Designated 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 Designated Securities of a defaulting Underwriter or Underwriters by
the Representatives and the Company as provided in subsection (a) above,
the aggregate principal amount of Designated Securities which remains
unpurchased exceeds one-eleventh of the aggregate principal amount of the
Designated Securities, 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 Designated Securities of a
defaulting Underwriter or Underwriters, then the Pricing Agreement relating
to such Designated Securities shall thereupon terminate, without liability
on the part of any non-defaulting Underwriter or the Company, except for
the expenses to be borne by the Company and the Underwriters as provided in
Section 6 hereof and the indemnity and contribution agreements in Section 8
hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
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.
20
11. If any Pricing Agreement shall be terminated pursuant to
Section 9 hereof, the Company shall not then be under any liability to any
Underwriter with respect to the Designated Securities covered by such
Pricing Agreement except as provided in Sections 6 and 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 Sections 6 and 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 Sections 8 and 10 hereof, the officers and
directors of the Company and each person who controls the Company or any
Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement or any such Pricing Agreement. No
purchaser of any of the Securities from any Underwriter shall be deemed a
successor or assign by reason merely of such purchase.
14. Time shall be of the essence of 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.
21
16. This Agreement and each Pricing Agreement may be executed by
any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same
instrument.
Very truly yours,
Jefferson-Pilot Corporation
By: . . . . . . . . . . . . . . .
Name:
Title:
1
ANNEX I
Pricing Agreement
Xxxxxxx, Xxxxx & Co.,
[NAMES OF CO-REPRESENTATIVE(S),]
As Representatives of the several
Underwriters named in Schedule I hereto,
[C/O GOLDMAN, SACHS & CO.,]
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
,1995
Ladies and Gentlemen:
JEFFERSON-PILOT CORPORATION, a NORTH CAROLINA corporation (the
"Company"), proposes, subject to the terms and conditions stated herein and
in the Underwriting Agreement, dated . . . . . . . . . . . ., 1995 (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 which 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.
2
If the foregoing is in accordance with your understanding, please
sign and return to us [ONE FOR THE COMPANY AND EACH OF THE REPRESENTATIVES
PLUS ONE FOR EACH COUNSEL] counterparts hereof, and upon acceptance hereof
by you, on behalf of each of the Underwriters, this letter and such
acceptance hereof, including the provisions of the Underwriting Agreement
incorporated herein by reference, shall constitute a binding agreement
between each of the Underwriters and the Company. It is understood that
your acceptance of this letter on behalf of each of the Underwriters is or
will be pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Company for
examination upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
Very truly yours,
JEFFERSON-PILOT CORPORATION
By: . . . . . . . . . . . . . . .
Name:
Title:
Accepted as of the date hereof:
[XXXXXXX, XXXXX & CO.
[NAME(S) OF CO-REPRESENTATIVE(S)](1)]
[BY: (1)] . . . . . . . . . . . . . . . .
(Xxxxxxx, Sachs & Co.)
[[NAME(S) OF CO-REPRESENTATIVE CORPORATION(S)]
BY: . . . . . . . . . . . . . . . . . . .
NAME:
TITLE:
. . . . . . . . . . . . . . . . . . .
[(NAME(S) OF CO-REPRESENTATIVE
PARTNERSHIP(S))](1)]
On behalf of each of the Underwriters
3
SCHEDULE I
PRINCIPAL
AMOUNT OF
DESIGNATED
SECURITIES
TO BE
UNDERWRITER PURCHASED
Xxxxxxx, Xxxxx & Co. $
[NAME(S) OF CO-REPRESENTATIVE(S)(1)]
[NAMES OF OTHER UNDERWRITERS]
Total $
1
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due ,
AGGREGATE PRINCIPAL AMOUNT:
[$]
PRICE TO PUBLIC:
% of the principal amount of the Designated Securities, plus
accrued interest[, if any,] from to [and accrued
amortization[, if any,] from to ]
PURCHASE PRICE BY UNDERWRITERS:
% of the principal amount of the Designated Securities, plus
accrued interest from to [and accrued
amortization[, if any,] from to ]
FORM OF DESIGNATED SECURITIES:
[Definitive form to be made available for checking and packaging at
least twenty-four hours prior to the Time of Delivery at the office of
[The Depository Trust Company or its designated custodian] [the
Representatives]](13)
[Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian, to be made available for checking by the Representatives at
least twenty-four hours prior to the Time of Delivery at the office of
DTC.](14)
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
[New York] Clearing House (next day) funds(15)
TIME OF DELIVERY:
a.m. (New York City time), , 19
INDENTURE:
Indenture dated , 1995 , between the Company and
, as Trustee
MATURITY:
2
INTEREST RATE:
[ %] [Zero Coupon] [See Floating Rate Provisions]
INTEREST PAYMENT DATES:
[months and dates, commencing ....................., 19..]
REDEMPTION PROVISIONS:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, in the
amount of [$ ] or an integral multiple thereof,
[on or after , at the following redemption prices (expressed
in percentages of principal amount). If [redeemed on or before
, %, and if] redeemed during the 12-month period beginning ,
REDEMPTION
YEAR PRICE
and thereafter at 100% of their principal amount, together in each
case with accrued interest to the redemption date.]
[on any interest payment date falling on or after ,
, at the election of the Company, at a redemption price equal to the
principal amount thereof, plus accrued interest to the date of
redemption.]]
[Other possible redemption provisions, such as mandatory redemption
upon occurrence of certain events or redemption for changes in tax
law]
[Restriction on refunding]
SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking
fund to retire [$ ] principal amount of Designated Securities on
in each of the years through
at 100% of their principal amount plus accrued interest[,
together with [cumulative] [noncumulative] redemptions at the option
of the Company to retire an additional [$ ] principal amount
of Designated Securities in the years through at 100% of
their principal amount plus accrued interest.]
[If Designated Securities are extendable debt securities, insert--
3
EXTENDABLE PROVISIONS:
Designated Securities are repayable on , [insert date
and years], at the option of the holder, at their principal amount
with accrued interest. The initial annual interest rate will be
%, and thereafter the annual interest rate will be adjusted on
, and to a rate not less than % of
the effective annual interest rate on U.S. Treasury obligations with
-year maturities as of the [insert date 15 days prior to maturity
date] prior to such [insert maturity date].]
[If Designated Securities are floating rate debt securities, insert--
FLOATING RATE PROVISIONS:
Initial annual interest rate will be % through [and
thereafter will be adjusted [monthly] [on each , ,
and ] [to an annual rate of % above the average rate for
-year [month][securities][certificates of deposit] issued by
and [insert names of banks].] [and the annual
interest rate [thereafter] [from
through ] will be the interest yield equivalent of the
weekly average per annum market discount rate for -month
Treasury bills plus % of Interest Differential (the excess, if
any, of (i) the then current weekly average per annum secondary market
yield for -month certificates of deposit over (ii) the then
current interest yield equivalent of the weekly average per annum
market discount rate for -month Treasury bills); [from
and thereafter the rate will be the then current interest yield
equivalent plus % of Interest Differential].]
DEFEASANCE PROVISIONS:
EXCHANGE OR CONVERSION PROVISIONS:
CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
ADDITIONAL CLOSING CONDITIONS:
Paragraph 7(g) of the Underwriting Agreement should be modified in the
event that the Securities are denominated in, indexed to, or principal
or interest are paid in, a currency other than the U.S. dollar, more
than one currency or in a composite currency. The country or countries
issuing such currency should be added to the banking moratorium and
hostilities clauses and the following additional clause should be added
to the paragraph (the entire paragraph should be restated, as amended):
"; ( ) the imposition of the proposal of exchange controls by any
governmental authority in [insert the country or countries issuing such
currency, currencies or composite currency]".
4
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
[OTHER TERMS]*:
* A description of particular tax, accounting or other unusual
features (such as the addition of event risk provisions) of the
Designated Securities should be set forth, or referenced to an
attached and accompanying description, if necessary, to ensure
agreement as to the terms of the Designated Securities to be
purchased and sold. Such a description might appropriately be in
the form in which such features will be described in the Prospectus
Supplement for the offering.
1
SCHEDULE III
Material Subsidiaries
Jefferson-Pilot Life Insurance Company
Xxxxxxxxx Xxxxxxxx Life Insurance Company of America
Jefferson-Pilot Communications Company
1
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, the
accountants 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, financial forecasts 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, financial forecasts 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
separately furnished to the representative or representatives of the
Underwriters (the "Representatives") such term to include an
Underwriter or Underwriters who act without any firm being designated
as its or their representatives;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included in the Company's quarterly
report on Form 10-Q incorporated by reference into the Prospectus as
indicated in their reports thereon copies of which have been
separately furnished to the Representatives; and on the basis of
specified procedures including inquiries of officials of the Company
who have responsibility for financial and accounting matters
regarding whether the unaudited condensed consolidated financial
statements referred to in paragraph (vi)(A)(i) below comply as to
form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related
published rules and regulations, nothing came to their attention that
caused them to believe that the unaudited condensed consolidated
financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the Act and
the Exchange Act and the related published rules and regulations;
(iv) 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;
2
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such letter
nothing came to their attention as a result of the foregoing
procedures that caused them to believe that this information does not
conform in all material respects with the disclosure requirements of
Items 301, 302, 402 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination 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) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus and/or 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 and the related published rules and regulations,
or (ii) any material modifications should be made to the unaudited
condensed consolidated statements of income, consolidated balance
sheets and consolidated statements of cash flows included in the
Prospectus or included in the Company's Quarterly Reports on Form 10-
Q incorporated by reference in the Prospectus for them to be in
conformity with generally accepted accounting principles;
(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) and any
unaudited income statement data and balance sheet items included in
the Prospectus and referred to in Clause (B) 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
3
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
current assets or stockholders' equity 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) there were any decreases
in consolidated net revenues or operating profit or 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
(vii) 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 (vi) 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.
1
XXXXXXX, XXXXX & CO.
FORM OF DELAYED DELIVERY
PROVISIONS AND CONTRACT
(FOR USE IN DEBT MODEL B)
The following provisions should be used in the case of an
Underwriting Agreement with respect to a shelf registration statement where
a portion of the Designated Securities specified in Schedule II to a
Pricing Agreement may be sold pursuant to Delayed Delivery Contracts. Note
carefully the definitions of "Contract Securities", "Underwriters'
Securities" and "Designated Securities." The last term is intended to apply
to all Designated Securities which the Underwriters are obligated to
purchase under a Pricing Agreement before giving effect to any deduction
for Contract Securities but after giving effect to any additional
Designated Securities which the Underwriters are obligated to purchase by
reason of the default provisions of Section 9 of the Underwriting
Agreement. It is assumed that there will be no Underwriters' over-allotment
option.
In lieu of the existing introductory paragraph of the Underwriting
Agreement, insert the following:
"From time to time JEFFERSON-PILOT 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 "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 are 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) are herein sometimes referred to as
"Underwriters' Securities")."
Add the following words to the fifth sentence of Section 1 after the
words "purchased by each Underwriter":
"and whether any of such Designated Securities shall be covered
by Delayed Delivery Contracts (as defined in Section 3 hereof)"
Add the following words to the first sentence of Section 2(g) after
the words "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"
Add the following Section 2(j):
2
"(j) 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;"
Add the following words to Section 2(h):
After the words "Securities, the Indenture,":
", each of the Delayed Delivery Contracts,"
After the words "Pricing Agreement or the Indenture":
"or any Delayed Delivery Contract"
Replace the word "Designated" the second and third time it appears in
Section 3 with the word "Underwriters."
Add the following two paragraphs to the end of Section 3:
"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 principal amount of Contract Securities to be deducted from
the 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
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 principal
amount of Designated Securities to be purchased by such Underwriter
under such Pricing Agreement bears to the total principal amount of
the Designated Securities (rounded as the Representatives may
determine). The total principal amount of Underwriters' Securities
to be purchased by all the Underwriters pursuant to such Pricing
Agreement shall be the total principal amount of Designated
Securities set forth in Schedule I to such Pricing Agreement less the
principal amount of the Contract
3
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 principal amount of Contract Securities."
Replace the word "Designated" with the word "Underwriters'" at the
beginning of the first sentence of Section 4.
Add the following paragraph to the end of Section 4:
"Concurrently with the delivery of and payment for the
Underwriters' Securities, the Company will deliver to the
Representatives for the accounts of the Underwriters a check payable
to the order of the party designated 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."
Add the following words to Section 6:
To clause (ii), after the words "any Indenture,":
", any Delayed Delivery Contracts,"
To clause (viii), after the words "obligations hereunder":
"and under any Delayed Delivery Contracts"
Add the words "the Delayed Delivery Contracts, if any," to
Section 7(b) after the words "Indenture, the Designated Securities,".
Replace clause 7(c)(v) with the following paragraph:
"(v) The Designated Securities have been duly authorized; the
Underwriters' Securities have been duly executed, authenticated,
issued and delivered and constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the
Indenture; the Contract Securities, if any, when executed,
authenticated, issued and delivered pursuant to the Indenture and
Delayed Delivery Contracts, if any, will constitute valid and legally
binding obligations of the Company entitled to the benefits provided
by the Indenture; and the Designated Securities and the Indenture
conform to the descriptions thereof in the Prospectus as amended or
supplemented;"
Add the following paragraph after clause 7(c)(x):
"(xi) 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 Contract has been duly
executed and delivered by the purchaser named therein, constitutes 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 as amended or supplemented;"
4
Add the words "each of the Delayed Delivery Contracts, if any," to
clause 7(c)(vii) after the words "the Indenture".
Add the words "or any of such Delayed Delivery Contracts" to clause
7(c)(viii) after the words "the Indenture".
Replace the word "Designated" with the word "Underwriters'" in
clauses 7(e) and 7(g) after the words "or the delivery of the" and before
the word "Securities".
Replace the word "Designated" with the word "Underwriters'" in each
place it appears in the first, second and third sentences of Section 9(a)
before the word "Securities".
Replace the word "Designated" with the word "Underwriters'" before
the word "Securities" in Sections 9(b) the first, second, fourth and
seventh times the word "Securities" appears in such Section, but not the
third, fifth or sixth times and in Section 9(c) the first, second and
fourth times the word "Securities" appears in such Section, but not the
third or fifth times.
Add the word "Underwriters'" before the word "Securities" the second
time such word appears in Section 11, but not any other time.
Add the words ", less the principal amount of Designated Securities
covered by Delayed Delivery Contracts, if any, as may be specified in
Schedule II" to the end of the third paragraph of Annex I (the form of
Pricing Agreement) after the words "Schedule I hereto".
Add the following section to Schedule II of Annex I (the form of
Pricing Agreement) after the section captioned "Closing Location:":
"Delayed Delivery:
[NONE] [UNDERWRITERS' COMMISSION SHALL BE .......% OF THE
PRINCIPAL AMOUNT OF DESIGNATED SECURITIES FOR WHICH DELAYED DELIVERY
CONTRACTS HAVE BEEN ENTERED INTO. SUCH COMMISSION SHALL BE PAYABLE
TO THE ORDER OF ....]"
Add the Delayed Delivery Contract attached hereto as Annex III to the
Underwriting Agreement.
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ANNEX III
DELAYED DELIVERY CONTRACT
JEFFERSON-PILOT CORPORATION
Attention: . . . . . . . . . , 1995
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from JEFFERSON-PILOT
CORPORATION (hereinafter called the "Company"), and the Company agrees to
sell to the undersigned,
$.........
principal amount of the Company's [TITLE OF DESIGNATED SECURITIES]
(hereinafter called the "Designated Securities"), offered by the Company's
Prospectus, dated .............., 19.., 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.
The undersigned will purchase the Designated Securities from the
Company on .............., 19.. (the "Delivery Date") and interest on the
Designated Securities so purchased will accrue from .............., 19...
[THE UNDERSIGNED WILL PURCHASE THE DESIGNATED SECURITIES FROM THE
COMPANY ON THE DELIVERY DATE OR DATES AND IN THE PRINCIPAL AMOUNT OR
AMOUNTS SET FORTH BELOW:
PRINCIPAL DATE FROM WHICH
DELIVERY DATE Amount INTEREST ACCRUES
....................., 19.. $............. ....................., 19..
....................., 19.. $............. ....................., 19..
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 [THE] [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 [THE]
[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
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addressed to the Company not less than five full business days prior to
[THE] [SUCH] Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for Designated Securities on [THE] [EACH] Delivery Date shall be
subject to the condition that the purchase of Designated Securities to be
made by the undersigned shall not on [THE] [SUCH(4)] 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.
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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.
Yours very truly,
By: . . . . . . . . . . . . . . .
(Authorized Signature)
Name:
Title:
(Address)
Accepted: . . . . . . . . . . , 19..
JEFFERSON-PILOT CORPORATION
By: . . . . . . . . . . . . . . .
Name:
Title:
