EXHIBIT 1.1
UNDERWRITING AGREEMENT
(Debt Securities)
December 11, 2001
Torchmark Corporation
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
We (the "Managers") are acting on behalf of the underwriters
(including ourselves) named below (such underwriters being herein called the
"Underwriters"), and we understand that Torchmark Corporation (the "Company"), a
Delaware corporation, proposes to issue and sell to the several Underwriters
$180,000,000 aggregate principal amount of 6 1/4 % Senior Notes due 2006 (the
"Firm Underwriters' Securities" or the "Underwriters' Securities") of the
Company.
The Underwriters' Securities are being offered and sold pursuant to a
shelf registration statement on Form S-3 (registration no. 333-83411) and a Rule
462 (b) Registration Statement (together, as amended to the date hereof, the
"Registration Statement") filed by the Company with the Securities and Exchange
Commission pursuant to the provisions of the Securities Act of 1933, as amended.
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell and the Underwriters agree
to purchase, severally and not jointly, the aggregate principal amount of Firm
Underwriters' Securities set forth below opposite their names at a purchase
price of 98.985% of the principal amount per Firm Underwriters' Security (the
"Purchase Price").
Principal Amount
of
Firm
Underwriters'
Securities
Underwriters to Be Purchased
------------ ----------------
Banc One Capital Markets, Inc............................................... $85,500,000
Banc of America Securities LLC.............................................. 67,500,000
Fleet Securities, Inc....................................................... 18,000,000
SunTrust Capital Markets, Inc............................................... 9,000,000
The Underwriters will pay for the Firm Underwriters' Securities upon
delivery thereof at the offices of Sidley Xxxxxx Xxxxx & Xxxx, 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m. (New York time) on December 14, 2001, or
at such other time, not later than 5:00 p.m. (New York time) on December 28,
2001, as shall be designated by us. The time and date of such payment and
delivery are hereinafter referred to as the "Closing Date".
The Underwriters' Securities shall have the terms set forth in the
Prospectus dated November 30, 1999, and the Prospectus Supplement dated December
11, 2001, including the following.
Terms of Underwriters' Securities
Designation of the Underwriters'
Securities: Torchmark 6 1/4% Senior Notes due 2006
Issuer of Underwriters' Securities: Torchmark Corporation
Aggregate Principal Amount of Firm
Underwriters' Securities: $180,000,000
Price to Public: 99.585% of principal amount per
Underwriters' Security
Purchase Price: 98.985% of principal amount per
Underwriters' Security
Closing Date: December 14, 2001
Form of Payment: Immediately available funds
Form: Book-entry
Ratings: S&P: A
Xxxxx'x: Baa1
Fitch: A+
A.M. Best: A
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Other Terms:
Maturity Date: December 15, 2006
Interest Rate: 6 1/4% per annum
Interest Payment Dates: June 15 and December 15 of each year,
beginning June 15, 2002.
Record Dates: June 1 or December 1 preceding the relevant
interest payment date.
Redemption: None
Capitalized terms used above and not defined herein shall have the
meanings set forth in the Prospectus and Prospectus Supplement referred to
above.
Except as set forth below, all provisions contained in the document
entitled Underwriting Agreement Standard Provisions dated December 11, 2001 (the
"Standard Provisions") relating to the Underwriters' Securities of the Company,
a copy of which is attached hereto, are herein incorporated by reference in
their entirety and shall be deemed to be a part of this Underwriting Agreement
to the same extent as if such provisions had been set forth in full herein,
except that (i) if any term defined in such document is otherwise defined
herein, the definition set forth herein shall control, (ii) all references in
such document to a type of security that is not an Underwriters' Security shall
not be deemed to be a part of this Agreement, (iii) any references in such
document to "Additional Underwriters' Securities" or "Option Closing Date" shall
not be applicable in connection with the transactions contemplated hereby and
(iv) all references in such document to a type of agreement that has not been
entered into in connection with the transactions contemplated hereby shall not
be deemed to be a part of this Agreement.
Any notice by the Company to the Underwriters pursuant to this
Underwriting Agreement shall be sufficient if given in accordance with Section
10 of the Standard Provisions addressed to: Banc One Capital Markets, Inc., 0
Xxxx Xxx Xxxxx, Xxxxx XX0-0000, Xxxxxxx, XX 00000, attention Investment Grade
Securities and Banc of America Securities LLC, 0 Xxxx 00xx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, XX 00000, attention Xxxx Xxxxx.
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Please confirm your agreement by having an authorized officer sign a copy
of this Agreement in the space set forth below.
Very truly yours,
BANC ONE CAPITAL MARKETS, INC.
BANC OF AMERICA SECURITIES LLC
FLEET SECURITIES, INC.
SUNTRUST CAPITAL MARKETS, INC.
By: BANC ONE CAPITAL MARKETS, INC.
By: /s/ Xxxxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxxxx Xxxxx
Title: Associate Director
By: BANC OF AMERICA SECURITIES LLC
By: /s/ Xxxx Xxxxx
-------------------------------------
Name: Xxxx Xxxxx
Title: Principal
Acting severally on behalf of themselves and as
representatives of the Underwriters named herein.
Agreed and accepted:
TORCHMARK CORPORATION
By: /s/ Xxxxx X. XxXxx
-------------------------------
Name: Xxxxx X. XxXxx
Title: Vice-President, Associate
Counsel and Secretary
TORCHMARK CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (DEBT SECURITIES)
December 11, 2001
From time to time, Torchmark Corporation, a Delaware corporation (the
"Company"), may enter into one or more underwriting agreements that provide for
the sale of designated securities (the "Debt Securities") to the several
underwriters named therein. The standard provisions set forth herein may be
incorporated by reference in any such underwriting agreement (an "Underwriting
Agreement"). The Underwriting Agreement, including the provisions incorporated
therein by reference, is herein referred to as "this Agreement". Unless
otherwise defined herein, terms defined in the Underwriting Agreement are used
herein as therein defined.
The Debt Securities will be issued under an Indenture, dated as of
February 1, 1987, as supplemented as of December 14, 2001 (together, the
"Indenture"), between the Company, Bank One Trust Company, National Association
and The Bank of New York, as trustee under the Indenture with respect to the
Debt Securities (the "Trustee").
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-83411) for the
registration of certain securities, including the Debt Securities, and a
prospectus or prospectuses relating to such securities and will file with the
Commission a prospectus supplement or supplements specifically relating to the
Debt Securities pursuant to Rule 424 under the Securities Act of 1933, as
amended (the "Securities Act"). The term "Registration Statement" means the
registration statement as amended to the date of the Underwriting Agreement and,
upon the filing thereof with the Commission, a registration statement, if any
(the "Rule 462 (b) Registration Statement"), with respect to the Debt Securities
filed pursuant to Rule 462 (b) under the Securities Act. The term "Basic
Prospectus" means the prospectus included in the Registration Statement. The
term "Prospectus" means the Basic Prospectus together with the prospectus
supplement (other than a preliminary prospectus supplement) specifically
relating to the Debt Securities as filed with the Commission pursuant to Rule
424. The term "preliminary prospectus" means a preliminary prospectus supplement
specifically relating to the Debt Securities together with the Basic Prospectus.
As used herein, the terms "Registration Statement", "Basic Prospectus",
"Prospectus" and "preliminary prospectus" shall include in each case the
material, if any, incorporated by reference therein.
The term "Firm Underwriters' Securities" means the Debt Securities to be
purchased by the Underwriters herein. The term "Additional Underwriters'
Securities" means the additional Debt Securities, if any, that the Underwriters
will have the right to purchase, severally and not jointly, solely for the
purpose of covering over-allotments made in connection with the offering of the
Firm Underwriters' Securities. The Firm Underwriters' Securities and the
Additional Underwriters' Securities, if any, are referred to herein as the
"Underwriters' Securities".
The Company and the Underwriters agree as follows:
1. Public Offering. The Company is advised by the Managers that the
---------------
Underwriters propose to make a public offering of their respective portions of
the Underwriters' Securities as soon after this Agreement is entered into as in
the Managers' judgment is advisable. The terms of the public offering of the
Underwriters' Securities are set forth in the Prospectus.
2. Payment and Delivery. Payment for the Underwriters' Securities shall be
--------------------
made by payment in full of the requisite amount of funds specified in and in
accordance with the procedures set forth in the Underwriting Agreement, upon
delivery to the Managers for the respective accounts of the several Underwriters
of the Underwriters' Securities registered in such names and in such
denominations as the Managers shall request in writing not less than two full
business days prior to the date of delivery. The time and date of such payment
and delivery with respect to the Firm Underwriters' Securities are herein
referred to as the "Closing Date". The time and date of such payment and
delivery with respect to the Additional Underwriters' Securities, if any, are
herein referred to as the "Option Closing Date".
3. Conditions of Underwriters' Obligations. The several obligations of the
---------------------------------------
Underwriters hereunder are subject to the accuracy of the representations and
warranties on the part of the Company herein on and as of the Closing Date and,
if applicable, the Option Closing Date, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) Subsequent to the execution and delivery of the Underwriting
Agreement and prior to the Closing Date and, if applicable, the Option
Closing Date,
(i) (1) the Debt Securities shall have been assigned at least the
ratings by the rating agencies set forth in the applicable Underwriting
Agreement, and, on the Closing Date, the Company shall have delivered
to the Managers a letter dated the Closing Date, from each such rating
agency, or other evidence satisfactory to the Managers, confirming that
the Debt Securities have such ratings; and (2) there shall not have
occurred any downgrading, nor shall any notice have been given of any
intended or potential downgrading or of any review for a possible
change that does not indicate the direction of the possible change, in
the rating accorded the Debt Securities or any of the Company's
securities by any "nationally recognized statistical rating
organization", as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act;
(ii) no stop order suspending the effectiveness of the Registration
Statement (including the Rule 462 (b) Registration Statement, if
applicable) shall be in effect, and no proceedings for such purpose
shall be pending before or threatened by the Commission and there shall
have been no material adverse change or any development involving a
prospective material adverse change in the condition of the Company and
its subsidiaries, taken as a whole, from that set forth in the
Registration Statement and the Prospectus (exclusive of any amendments
or supplements thereto subsequent to the date of the Underwriting
Agreement);
(iii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business, operations or prospects of the
Company and its subsidiaries, taken as a whole, from that set forth in
the Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of the Underwriting Agreement) that, in the
Managers' reasonable judgment, is material and adverse
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and that makes it, in the Managers' reasonable judgment, impracticable
to market the Debt Securities on the terms and in the manner
contemplated in the Prospectus; and
(iv) the Underwriters shall have received on the Closing Date and,
if applicable, the Option Closing Date, a certificate, dated the
Closing Date or the Option Closing Date, as the case may be, and signed
by an executive officer of the Company, or any other person authorized
by the Board of Directors of the Company to execute any such written
statement (an "Executive Officer"),
(A) to the effect set forth in Sections 3(a)(i)(2) and
3(a)(ii) hereof (in the case of the certificate signed by an
Executive Officer of the Company); and
(B) to the effect that the representations and warranties of
the Company contained in this Agreement are true and correct as of
the Closing Date or the Option Closing Date, as the case may be,
and that the Company has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or
satisfied on or before the Closing Date or the Option Closing
Date, as the case may be.
The Executive Officer signing and delivering such certificate may rely upon
the best of his or her knowledge as to proceedings threatened.
(b) The Underwriters shall have received on the Closing Date and, if
applicable, the Option Closing Date, an opinion of Xxxxx X. XxXxx, Esq.,
Vice President, Associate Counsel and Secretary for the Company, dated the
Closing Date or the Option Closing Date, as the case may be, in
substantially the form set forth as Exhibit A.
(c) The Underwriters shall have received on the Closing Date and, if
applicable, the Option Closing Date, an opinion of Xxxxxxx, Xxxxxx & Xxxx,
P.C., special counsel for the Company, dated the Closing Date or the Option
Closing Date, as the case may be, in substantially the form set forth as
Exhibit B.
(d) The Underwriters shall have received on the Closing Date and, if
applicable, the Option Closing Date, an opinion of Sidley Xxxxxx Xxxxx &
Wood LLP, counsel for the Underwriters, dated the Closing Date or the
Option Closing Date, as the case may be, in substantially the form set
forth as Exhibit C.
(e) The Underwriters shall have received (i) on the date of the
Underwriting Agreement a letter dated such date, (ii) on the Closing Date a
letter dated the Closing Date and, (iii) if applicable, on the Option
Closing Date a letter dated the Option Closing Date, in each case in form
and substance satisfactory to the Managers, from the independent public
accountants of the Company, containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial information
contained or incorporated by reference in the Registration Statement and
the Prospectus.
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4. Certain Covenants of the Company. In further consideration of the
--------------------------------
agreements of the Underwriters contained in this Agreement, the Company
covenants as follows:
(a) To furnish the Managers, without charge, as many copies of the
Registration Statement, including exhibits and materials, if any,
incorporated by reference therein and, during the period mentioned in
paragraph (c) below, the Prospectus, any documents incorporated by
reference therein and any supplements and amendments thereto or to the
Registration Statement, as the Managers may reasonably request. The terms
"supplement" and "amendment" or "amend" as used in this Agreement with
respect to the Registration Statement, Prospectus or preliminary prospectus
shall include all documents filed by the Company with the Commission
subsequent to the date of the Basic Prospectus, pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), which are deemed to
be incorporated by reference in the Prospectus.
(b) Before amending or supplementing the Registration Statement (or
filing the Rule 462 (b) Registration Statement, if applicable) or the
Prospectus with respect to the Debt Securities, to furnish the Managers a
copy of each such proposed amendment or supplement and not to file any such
proposed amendment or supplement to which the Managers reasonably object
promptly after reasonable notice thereof.
(c) If, during such period after the commencement of the public
offering of the Debt Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered with respect
thereto, any event shall occur or condition exist as a result of which the
Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances then
existing, not misleading, or if it is necessary to amend or supplement the
Prospectus to comply with law, forthwith at its own expense, to amend or to
supplement the Prospectus and to furnish such amendment or supplement to
the Underwriters, so as to correct such statement or omission or effect
such compliance.
(d) To qualify the Debt Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Managers shall
reasonably request and to pay all reasonable expenses (including fees and
disbursements of counsel) in connection with such qualification.
(e) To make generally available to the Company's security holders as
soon as practicable an earnings statement of the Company covering a twelve
month period beginning after the date of the Underwriting Agreement (but in
no event commencing later than 90 days after such date), which shall
satisfy the provisions of Section 11(a) of the Securities Act and the rules
and regulations of the Commission thereunder and to advise the Managers in
writing when such statement has been made available.
(f) During a period of 90 days from the date of the Underwriting
Agreement, without the prior written consent of the Managers, on behalf of
the Underwriters, not to offer, sell, contract to sell, grant any option
for the sale of, or otherwise dispose of, any
5
Debt Securities or any securities of the Company that are substantially
similar to the Debt Securities including, but not limited to, any
securities that are convertible into or exercisable or exchangeable for or
that represent the right to receive Debt Securities or any such
substantially similar securities of the Company (other than the Debt
Securities offered hereby).
(g) Whether or not any sale of Debt Securities is consummated, to pay
or cause to be paid all expenses incident to the performance of the
obligations of the Company under the Underwriting Agreement, including,
without limitation: (i) the preparation and filing of the Registration
Statement (including the Rule 462 (b) Registration Statement, if any) and
the Prospectus and all amendments and supplements thereto, (ii) the
preparation, issuance and delivery of the Debt Securities, (iii) the fees
and disbursements of the Company's counsel and accountants, (iv) the
qualification of the Debt Securities under securities or Blue Sky laws in
accordance with the provisions of Section 4(d) hereof, including filing
fees and the fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the printing or producing and
delivery of any Blue Sky or legal investment memoranda, (v) the printing
and delivery to the Underwriters in quantities as hereinabove stated of
copies of the Registration Statement and all amendments thereto and of the
Prospectus and any amendments or supplements thereto, (vi) the filing fees
incident to, and the fees and disbursements of counsel to the Underwriters
in connection with, the review, if any, by the National Association of
Securities Dealers, Inc. (the "NASD") of the terms of the sale of the Debt
Securities, (vii) any fees charged by rating agencies for the rating of the
Debt Securities and (viii) all costs and expenses, if any, incident to
listing the Debt Securities on the New York Stock Exchange.
(h) If the Company elects to rely upon Rule 462 (b), the Company shall
file a Rule 462 (b) Registration Statement with the Commission in
compliance with Rule 462 (b) by 10:00 P.M., Washington, D.C. time, on the
date of this Agreement, and the Company shall at the time of filing either
pay to the Commission the filing fee for the Rule 462 (b) Registration
Statement or give irrevocable instructions for the payment of such fee
pursuant to Rule 111 (b) under the Act.
5. Representations and Warranties of the Company. The Company represents
---------------------------------------------
and warrants to each Underwriter that: (a) (i) each document filed or to be
filed pursuant to the Exchange Act and incorporated by reference in the
Prospectus complied or will comply when so filed in all material respects with
the Exchange Act and the applicable rules and regulations thereunder, (ii) the
Registration Statement (including the Rule 462 (b) Registration Statement, if
any) and the Prospectus comply and, as amended or supplemented, if applicable,
will comply in all material respects with the Securities Act and the applicable
rules and regulations thereunder, (iii) each part of the Registration Statement
(including the Rule 462 (b) Registration Statement, if any) (including the
documents incorporated by reference therein) and any post-effective amendments
thereto (including the filing of the Company's most recent Annual Report on Form
10-K with the Commission) filed with the Commission pursuant to the Securities
Act relating to the Debt Securities, when such part became effective, did not
contain and each such part, as amended or supplemented, if applicable, will not
contain any untrue statement of material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
6
therein not misleading and (iv) the Prospectus, as of its date, did not contain
and, as amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; except that the above representations and
warranties do not apply to statements or omissions in the Registration Statement
or the Prospectus based upon information furnished to the Company in writing by
any Underwriter expressly for use therein or to that part of the Registration
Statement that constitutes the Statement of Eligibility and Qualification (Form
T-1) under the Trust Indenture Act of the trustee referred to in the
Registration Statement.
(b) The Registration Statement (including the Rule 462 (b)
Registration Statement, if any) has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has
all requisite corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and
is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(d) Each "significant subsidiary" (within the meaning of Rule 1-02
under Regulation S-X promulgated by the Commission) (the "Significant
Subsidiaries") of the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has all requisite corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole; all of the issued shares of capital
stock of each Significant Subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable and are
owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims.
(e) Each of the Company and its Significant Subsidiaries engaged in
the business of insurance are duly organized and licensed as insurance
companies or insurance holding companies, as the case may be, in their
respective jurisdictions of incorporation (if so required) and, in the case
of the Company, each other jurisdiction where it is required to be so
licensed or authorized to conduct its business, and, in the case of the
Significant Subsidiaries engaged in the business of insurance, each other
jurisdiction in which such Significant Subsidiary has written 5% or more of
the total amount of premiums written by it during each of the last two
calendar years, except for any such jurisdictions in which the failure to
be so licensed or authorized would not have
7
a material adverse effect on the Company and its subsidiaries, taken as a
whole; neither the Company nor any Significant Subsidiary engaged in the
business of insurance has received any notification from any insurance
regulatory authority to the effect that any additional authorization,
approval, order, consent, license, certificate, permit, registration or
qualification from such insurance regulatory authority is needed to be
obtained by the Company or any such Significant Subsidiary in any case
where it would be reasonably expected that failure to obtain any such
additional authorization, approval, order, consent, license, certificate,
permit, registration or qualification would have a material adverse effect
on the Company and its subsidiaries, taken as a whole.
(f) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(g) The Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized by the Company and, upon execution and
delivery thereof by the Company (and assuming due authorization, execution
and delivery by the Indenture Trustee), will, as of the Closing Date, be a
valid and binding agreement of the Company, enforceable against the Company
in accordance with its terms except as the enforceability thereof (i) may
be limited by bankruptcy, insolvency, fraudulent transfer, reorganization,
liquidation, moratorium and other similar laws affecting creditors' rights
generally and (ii) is subject to general principles of equity, regardless
of whether such enforceability is considered in a proceeding in equity or
at law.
(h) The Debt Securities, which will constitute senior unsubordinated
indebtedness of the Company, have been duly authorized and, when executed
and authenticated in accordance with the provisions of the Indenture, and
delivered to and paid for by the Underwriters in accordance with the terms
of the Underwriting Agreement, will be entitled to the benefits of the
Indenture, and will be valid and legally binding obligations of the
Company, enforceable against the Company in accordance with their terms and
entitled to the benefits of the Indenture, except as the enforceability
thereof (i) may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights generally and (ii) is subject to general principles of
equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(i) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, the Underwriting Agreement, the
Indenture and the Debt Securities, and the issuance and sale of the Debt
Securities as contemplated in the Underwriting Agreement will not
contravene any provision of applicable law or the certificate of
incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or any
judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Company or any subsidiary, and no consent, approval,
authorization or order of, or qualification with, any governmental body or
agency is required for the performance by the Company of its obligations
under the Underwriting Agreement, the Indenture and the Debt Securities
8
except such as have been obtained or may be required by the securities or
Blue Sky laws of the various states in connection with the offer and sale
of the Debt Securities.
(j) Neither the Company nor any Significant Subsidiary is in
violation of its certificate of incorporation or by-laws; neither the
Company nor any Significant Subsidiary is in default in the performance or
observance of any obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument to which it is a party or by
which it or any of its properties may be bound, except for such defaults
that will not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(k) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business, operations
or prospects of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of the Underwriting Agreement).
(l) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in
all material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(m) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration Statement or
the Prospectus and are not so described or any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required.
(n) The Company is not and, after giving effect to the offering and
sale of the Debt Securities and the application of the proceeds thereof as
described in the Prospectus, will not be, required to register as an
"investment company" as such term is defined in the Investment Company Act
of 1940, as amended.
(o) The Company and its subsidiaries (i) are in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly or in
the aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
9
(p) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with Environmental
Laws or any permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties) which would, singly
or in the aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(q) Deloitte & Touche LLP, and, with respect to the financial
statements and supporting schedules for the year ended December 31, 1998, KPMG
LLP, the accountants who certified the financial statements and supporting
schedules included in or incorporated by reference in the Registration Statement
and the Prospectus, are independent public accountants as required by the
Securities Act and the rules and regulations of the Commission thereunder.
6. Indemnification and Contribution. (a) The Company agrees to indemnify
--------------------------------
and hold harmless each Underwriter and each person, if any, who controls such
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages, liabilities and any amounts paid in settlements arising out of or
caused by any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (including the Rule 462 (b) Registration
Statement, if any) or any amendment thereof, any preliminary prospectus or the
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or arising out of or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except to
the extent that such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information furnished in writing to the Company by any Underwriter
expressly for use therein; provided, however, that the foregoing indemnity
-------- -------
agreement with respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter from whom the person asserting any such losses,
claims, damages or liabilities purchased Debt Securities, or any person
controlling such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplement
thereto) was not sent or given by or on behalf of such Underwriter to such
person, if required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Debt Securities to such person, and if the
Prospectus (as so amended or supplemented) would have cured the defect giving
rise to such losses, claims, damages or liabilities, unless such failure is the
result of noncompliance by the Company with Section 4(a) hereof.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and any person controlling the Company to the same extent
as the foregoing indemnity from the Company to each Underwriter, but only with
reference to information relating to such Underwriter furnished to the Company
in writing by such Underwriter expressly for use in the Registration Statement,
any preliminary prospectus or the Prospectus or any amendments or supplements
thereto.
10
(c) If any proceeding (including any government investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel, (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them or (iii) the indemnifying party shall have
failed to retain counsel reasonably satisfactory to the indemnified party. It is
understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm (in addition to any
local counsel) for all such indemnified parties, and that all such fees and
expenses shall be paid as they are incurred. Such firm shall be designated in
writing by the Managers in the case of parties indemnified pursuant to the
second preceding paragraph and by the Company in the case of parties indemnified
pursuant to the immediately preceding paragraph. The indemnifying party shall
not be liable for any settlement of any proceeding effected without its written
consent, which consent shall not be unreasonably withheld, but if settled with
such consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 6 is unavailable to
an indemnified party under Section 6(a) or 6(b) in respect of any losses,
claims, damages or liabilities referred to therein, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Debt Securities or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other in connection with the offering of the Debt Securities shall be
deemed to be in the same proportion as the total net proceeds from the offering
of such Debt Securities (before deducting expenses) received by the Company bear
to the total underwriting discounts and commissions received by the Underwriters
in respect thereof. The relative fault of the Company on the one hand and of the
Underwriters on the other shall be
11
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
(e) The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 6 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Debt
Securities underwritten and distributed to the public by such Underwriter were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriter's obligations to contribute
pursuant to this Section 6 are several, in proportion to the respective
principal amounts of Debt Securities purchased by each of such Underwriters, and
not joint.
(f) The indemnity and contribution agreements contained in this Section 6
and the representations and warranties of the Company in this Agreement shall
remain operative and in full force and affect regardless of (i) any termination
of this Agreement, (ii) any investigation made by any Underwriter or on behalf
of any Underwriter or any person controlling any Underwriter or buyer on behalf
of the Company, its directors or officers or any person controlling the Company
and (iii) acceptance of and payment for any of the Debt Securities.
7. Termination in Certain Events. This Agreement, and with respect to the
-----------------------------
Option Closing Date, if any, the obligations of the Underwriters to purchase and
of the Company to sell, the Additional Underwriters' Securities to be purchased
and sold on the Option Closing Date, shall be subject to termination in the
absolute discretion of the Managers, by notice given to the Company , if (a)
after the execution and delivery of this Agreement and prior to the Closing Date
or the Option Closing Date, as the case may be, (i) trading generally shall have
been suspended or materially limited on the New York Stock Exchange or on any
other exchange on which the Debt Securities are listed, (ii) a general
moratorium on commercial banking activities in the State of New York shall have
been declared by either Federal or New York State authorities, (iii) trading of
any securities of or guaranteed by the Company shall have been suspended on any
exchange or in any over-the-counter market, (iv) a material disruption has
occurred in commercial banking or securities settlement or clearance services in
the United States or (v) there shall have occurred any material adverse change
in the financial markets, material outbreak
12
or escalation of hostilities or other national or international calamity or
crisis of such magnitude and severity in its effect on the financial markets of
the United States and (b) such event singly or together with any other such
event makes it, in the reasonable judgment of the Managers, impracticable to
market the Debt Securities on the terms and in the manner contemplated in the
Prospectus.
8. Defaulting Underwriters. If, on the Closing Date or the Option Closing
-----------------------
Date, as the case may be, any one or more of the Underwriters shall default in
its or their obligations to take up and pay for the Debt Securities or otherwise
fail or refuse to purchase Debt Securities which it or they have agreed to
purchase hereunder on such date, and the aggregate principal amount of Debt
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate principal of
the Debt Securities to be purchased on such date, the non-defaulting
Underwriters may make arrangements satisfactory to the Company and the non-
defaulting Underwriters for the purchase of such Debt Securities, but if no such
arrangements are made, the non-defaulting Underwriters shall be obligated
severally in the proportions which the aggregate principal amount of Debt
Securities set forth opposite their names in the Underwriting Agreement bear to
the aggregate principal amount of Debt Securities set forth opposite the names
of all such non-defaulting Underwriters, or in such other proportions as the
Managers may specify, to purchase the Underwriters' Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date; provided that in no event shall the aggregate principal amount of
--------
Debt Securities which any non-defaulting Underwriter has agreed to purchase
pursuant to the Underwriting Agreement be increased pursuant to this paragraph
by an amount in excess of one-ninth of such principal amount of Debt Securities
without the written consent of such non-defaulting Underwriter. In any such case
either the Managers or the Company shall have the right to postpone the Closing
Date, or the Option Closing Date, as the case may be, but in no event for longer
than seven days, in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or arrangements may be
effected. If any Underwriter or Underwriters shall fail or refuse to purchase
Debt Securities and the aggregate principal amount of Debt Securities with
respect to which such default occurs is more than one-tenth of the aggregate
principal amount of the Debt Securities, and arrangements satisfactory to the
Managers and the Company for the purchase of such Debt Securities are not made
within 36 hours after such default, this Agreement, or with respect to the
Option Closing Date, the obligations of the Underwriters to purchase and of the
Company to sell, the Additional Underwriters' Securities to be purchased and
sold on the Option Closing Date, will terminate without liability on the part of
any non-defaulting Underwriter or of the Company. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
9. Reimbursement of Underwriters' Expenses. If this Agreement shall be
---------------------------------------
terminated by the Underwriters or any of them because of any failure or refusal
on the part of the Company to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company shall be unable
to perform its obligations under this Agreement, the Company agrees to reimburse
the Underwriters or such Underwriters as have so terminated this Agreement, with
respect to themselves, severally, for all out-of-pocket expenses (including the
fees and disbursements of their counsel itemized in detail reasonably
satisfactory to the Company) reasonably incurred by such Underwriters in
connection with the Debt Securities.
13
10. Notices. All notices and other communications hereunder shall be in
-------
writing, either delivered by hand, by mail or by telex, telecopier or telegram,
and any such notice shall be effective when received at the address specified in
this Section 10. Notices to the Underwriters shall be directed as provided in
the Underwriting Agreement. Notices to the Company shall be directed to it at
0000 Xxxxx Xxxxxx, Xxxxx Xxxxxxxxxx, Xxxxxxx 00000-0000, attention of General
Counsel
11. Counterparts. This Agreement may be signed in any number of
------------
counterparts, each of which shall be an original, with the same affect as if the
signatures thereto and hereto were upon the same instrument.
12. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of New York.
13. Parties In Interest. This Agreement has been and is made solely for
-------------------
the benefit of the Underwriters and the Company , and the controlling persons,
directors and officers referred to in Section 6 hereof, and their respective
successors, assigns, executors and administrators. No other person shall acquire
or have any right under or by virtue of this Agreement.
14. Section Headings. The Section headings in this Agreement have been
----------------
inserted as a matter of convenience of reference and are not a part of this
Agreement.
14
EXHIBIT A
FORM OF OPINION OF XXXXX X. XXXXX, ESQ.
VICE PRESIDENT, ASSOCIATE COUNSEL AND SECRETARY
FOR THE COMPANY
[Date]
[Names and Addresses of Underwriters]
Dear Ladies and Gentlemen:
I am Vice President, Associate Counsel and Secretary of Torchmark
Corporation, a Delaware corporation (the "Company"), and, as such, have served
as counsel for the Company in connection with the issuance and sale to the
several Underwriters named in the Underwriting Agreement dated December [_],
2001 (the "Underwriting Agreement") of $[_] in principal amount of [_]% Senior
Notes due [_] (the "Debt Securities"). Terms used in this opinion and not
otherwise defined have the same meanings as in the Underwriting Agreement.
The Debt Securities are to be issued pursuant to an indenture, dated as of
February 1, 1987 and supplemented as of December [_], 2001, between the Company,
Bank One Trust Company, National Association and The Bank of New York, as
indenture trustee with respect to the Debt Securities, and an Officer's
Certificate, dated as of such date and issued pursuant thereto (collectively,
the "Indenture").
I am familiar with and have examined such documents and records as I deemed
necessary to render this opinion, including the Underwriting Agreement, the
Indenture and forms of the Debt Securities.
In my examination I have assumed but have not independently verified the
genuineness of all signatures on all documents examined by me, the conformity to
original documents of all documents submitted to us as certified or facsimile
copies and the authenticity of all such documents.
Based on the foregoing, and subject to the qualifications hereinafter set
forth, I am of the opinion that:
(i) the Company (1) has been duly incorporated, is validly existing as
a corporation in good standing under the laws of the State of Delaware and
has all requisite corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus
and (2) is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the
A-1
failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole;
(ii) each of Liberty National Life Insurance Company, Globe Life And
Accident Insurance Company, United American Insurance Company, United
Investors Life Insurance Company and American Income Life Insurance Company
(collectively, the "Designated Subsidiaries"), (1) has been duly
incorporated, is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation and has all requisite
corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Prospectus and (2) is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole; all of the
issued shares of capital stock of each such Designated Subsidiary have been
duly and validly authorized and issued, are fully paid and nonassessable
and are owned directly or indirectly by the Company free and clear of any
and all liens, encumbrances, equities or claims;
(iii) each Designated Subsidiary is duly qualified and/or licensed to
transact the business of insurance and is in good standing in each
jurisdiction in which, during either of the last two calendar years, it
wrote five percent (5%) or more of the total premiums written by it;
(iv) the execution and delivery by the Company of, and the performance
by the Company of its obligations under, the Underwriting Agreement, the
Indenture and the Debt Securities, and the issuance and sale of the Debt
Securities as contemplated in the Underwriting Agreement, will not
contravene any provision of applicable law or the certificate of
incorporation or by-laws of the Company or, to my knowledge, any agreement
or other instrument binding upon the Company or any of its subsidiaries
that is material to the Company and its subsidiaries, taken as a whole, or
any judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any subsidiary, and no consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Company
of its obligations under the Underwriting Agreement, the Indenture and the
Debt Securities, except such as have been obtained or may be required by
the securities or Blue Sky laws of the various states in connection with
the offer and sale of the Debt Securities;
(v) after due inquiry, I do not know of any legal or governmental
proceedings pending or threatened to which the Company or any of its
subsidiaries is a party or to which any property of the Company or any of
its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or of any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement which are not described or to be
filed as required;
A-2
(vi) the statements (a) in Part I of the Annual Report on Form 10-K of
the Company for the year ended December 31, 2000, under the captions
"Item 1--Business--Regulation" and "Item 3--Legal Proceedings" and (b) in
Part II of the Quarterly Reports on Form 10-Q of the Company for the
quarters ended March 31, 2001, June 30, 2001 and September 30, 2001, under
the caption "Item I--Legal Proceedings", in each case insofar as such
statements constitute summaries of legal matters, documents or proceedings
referred to therein, fairly summarize the matters referred to therein in
all material respects; and
(vii) I am of the opinion that each document incorporated by reference
in the Registration Statement and the Prospectus (other than the financial
statements, notes, and schedules and other financial data included or
incorporated by reference in such documents, as to which I express no
opinion) complied as to form when filed with the Securities and Exchange
Commission in all material respects with the Securities Exchange Act of
1934, as amended, and the rules and the regulations of the Securities and
Exchange Commission thereunder.
I am licensed to practice law only in the State of Alabama, and,
accordingly, I offer no opinion as to the application of decisions or statutory
law (including conflict of law rules) of any jurisdiction other than the State
of Alabama, the State of Delaware and the United States of America.
This opinion is delivered pursuant to Section 3(b) of the Underwriting
Agreement at the request of the Company and is intended solely for your use as
Underwriters. As such, it may not be relied upon by any other person or for any
other purpose other than for the legal conclusions expressed herein.
Very truly yours,
Xxxxx X. XxXxx, Esq.
A-3
EXHIBIT B
FORM OF OPINION OF XXXXXXX, XXXXXX & XXXX, P.C.
SPECIAL COUNSEL FOR THE COMPANY
[Date]
[Names and Addresses of Underwriters]
Dear Ladies and Gentlemen:
We have acted as special counsel for Torchmark Corporation, a Delaware
corporation (the "Company"), in connection with the issuance and sale by the
Company to the Several Underwriters named in the Underwriting Agreement, dated
December [_], 2001 (the "Underwriting Agreement"), of $[_] in principal
amount of [_]% Senior Notes due [_] (the "Debt Securities"). Terms used in this
opinion and not otherwise defined have the same meanings as in the Underwriting
Agreement.
The Debt Securities are to be issued pursuant to an indenture, dated as of
February 1, 1987 and supplemented as of December [_], 2001, between the Company,
Bank One Trust Company, National Association and The Bank of New York, as
indenture trustee with respect to the Debt Securities, and an Officer's
Certificate, dated as of such date and issued pursuant thereto, (collectively,
the "Indenture").
We have participated in the preparation of the Company's Registration
Statement on Form S-3 (File No. 333-83411) (other than the documents
incorporated by reference in the prospectus included therein (the "Incorporated
Documents")) filed with the Securities and Exchange Commission (the
"Commission") pursuant to the provisions of the Securities Act of 1933, as
amended (the "Securities Act"). Although we did not participate in the
preparation of the Incorporated Documents, we have reviewed such documents. In
addition, we have reviewed evidence that the Registration Statement was declared
effective under the Securities Act and that the Indenture was qualified under
the Trust Indenture Act of 1939, as amended, on November 30, 1999. The
registration statement (including the Incorporated Documents and the prospectus
supplement dated December [_], 2001 specifically relating to the Debt Securities
(the "Prospectus Supplement")) as amended to the date of the Prospectus
Supplement, and including the registration statement on Form S-3 (File
No. 333-____) filed by the Company on December 11, 2001 pursuant to Rule 462
(b) under the Securities Act (the "Rule 462 (b) Registration Statement), is
hereinafter referred to as the "Registration Statement", and the prospectus
included in the Registration Statement (the "Basic Prospectus") as supplemented
by the Prospectus Supplement is hereinafter referred to as the "Prospectus".
B-1
As special counsel, we have examined the Underwriting Agreement, the
Indenture and the forms of Debt Securities, and originals or copies of certain
corporate documents of the Company; certificates and statements of public
officials, corporate agents, officers of the Company, and other persons; and
such other documents as we have deemed necessary as a basis for our opinions set
forth below. In this connection, we have assumed the genuineness of all
signatures and the authenticity and correctness of all copies of documents
examined. Also, we have relied upon such certificates and statements of public
officials, corporate agents, officers of the Company, and other persons with
respect to the accuracy of material factual matters that were not independently
established.
Based on the foregoing, and subject to the qualifications hereinafter set
forth, we are of the opinion that:
(i) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company;
(ii) The Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended, and has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms
except as the enforceability thereof (i) may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, liquidation, moratorium
and other similar laws affecting creditors' rights generally and (ii) is
subject to general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law;
(iii) The Debt Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in accordance
with the Underwriting Agreement, will be valid and binding obligations of
the Company, enforceable against the Company in accordance with its terms
and entitled to the benefits of the Indenture, except as the enforceability
thereof (i) may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights generally and (ii) is subject to general principles of
equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law;
(iv) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, the Underwriting Agreement, the
Indenture and the Debt Securities will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of the
Company;
(v) No consent, approval, authorization or order of, or qualification
with, any governmental body or agency is required for the performance by
the Company of its obligations under the Underwriting Agreement, the
Indenture and the Debt Securities except such as have been obtained or may
be required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Debt Securities;
B-2
(vi) The Company is not, and after giving effect to the issuance of
the Debt Securities and assuming the application of the proceeds thereof as
described in the Prospectus, will not be, required to register as an
"investment company" under the Investment Company Act of 1940, as amended;
(vii) The statements (a) in the Basic Prospectus under the caption
"Description of Securities--Description of Debt Securities," (b) in the
Prospectus Supplement under the captions "Description of Senior Notes" and
"Underwriting" and (c) in the Registration Statement in Item 15, in each
case insofar as such statements constitute summaries of legal matters,
documents or proceedings referred to therein, fairly summarize the matters
referred to therein in all material respects.
We have not ourselves checked the accuracy, completeness or fairness of, or
otherwise verified, the information furnished with respect to other matters in
the Registration Statement (including the Rule 462 (b) Registration Statement,
if any) or Prospectus. We have generally reviewed and discussed with your
representatives and with certain officers and employees of, and counsel and
independent public accountants for the Company, the information furnished,
whether or not subject to our check and verification. On the basis of such
consideration, review and discussion, but without independent check or
verification, except as stated, nothing has come to our attention that causes us
to believe that (i) the Registration Statement (including the Rule 462 (b)
Registration Statement, if any) and the Prospectus (except for the financial
statements and financial schedules and other financial data included or
incorporated by reference therein, as to which we express no belief, and except
for that part of the Registration Statement that constitutes the Statement of
Eligibility and Qualification of the trustees referred to in the Registration
Statement (the "Form T-1")) do not comply as to form in all material respects
with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder, (ii) the Registration Statement
(except for the financial statements and financial schedules and other financial
data included or incorporated by reference therein, as to which we express no
belief, and except for the Form T-1), at the time the Registration Statement
(or, if an amendment to the Registration Statement or an Annual Report on Form
10-K has been filed by the Company with the Commission subsequent to the
effectiveness of the Registration Statement, then at the time such amendment
became effective or at the time of the most recent such filing, as the case may
be) became effective, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or (iii) the Prospectus (except for
the financial statements and financial schedules and other financial data
included or incorporated by reference therein, as to which we express no belief,
and except for the Form T-1), as of its date and as of the date hereof,
contained or contains any untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
We are members of the Bar of the State of Alabama, and this opinion is
limited in all respects to the laws of the State of Alabama, the General
Corporation Law of the State of Delaware, and the United States of America. As
to all matters governed by the laws of the State of New York with respect to our
opinions in paragraphs (ii) and (iii), we are relying on the opinion dated today
of your counsel, Sidley Xxxxxx Xxxxx & Xxxx LLP.
B-3
This opinion is being delivered to you at the request of the Company in
connection with the Underwriting Agreement and the transactions contemplated by
the Underwriting Agreement, and may not be relied on by any other person or for
any other purpose without our prior written consent.
Very truly yours,
B-4
EXHIBIT C
FORM OF OPINION OF SIDLEY XXXXXX XXXXX & XXXX LLP
COUNSEL FOR THE UNDERWRITERS
[Date]
[Names and Addresses of Underwriters]
Dear Ladies and Gentlemen:
We have acted as counsel for the Underwriters named in the Underwriting
Agreement (the "Underwriting Agreement"), dated December [_], 2001, among
Torchmark Corporation, a Delaware corporation (the "Company"), and said
Underwriters, relating to the issuance and sale by the Company and the purchase
by the Underwriters, severally and not jointly, of $[ ] aggregate principal
amount of [_]% Senior Notes due 20__ (the "Notes") to be issued pursuant to an
indenture, dated as of February 1, 1987, as supplemented or amended by the
indenture supplement, dated as of December [_], 2001 (together, the
"Indenture"), between the Company, Bank One Trust Company, National Association
and The Bank of New York, as trustee under the Indenture with respect to the
Notes (the "Trustee"). This opinion is furnished to you pursuant to Section 3(d)
of the Underwriting Agreement. Capitalized terms used herein and not otherwise
defined have the meanings ascribed to them in the Underwriting Agreement.
As counsel to the Underwriters, we have examined such documents and records as
we deemed appropriate, including the following:
1. Copy, certified as of a recent date by the Secretary of State of the State
of Delaware, of the Certificate of Incorporation of the Company.
2. Certificate of recent date of the Secretary of State of the State of
Delaware as to the due incorporation and good standing of the Company.
3. Copies, certified by the Secretary of the Company to be true, complete and
correct copies, of resolutions duly adopted by the Board of Directors of the
Company on [_] [and resolutions duly adopted by the Finance Committee of
the Board of Directors on [_] ] relating to, among other matters,
authorization of the issuance and sale of the Notes and preparation and filing
of a registration statement with the Securities and Exchange Commission (the
"Commission"), and a copy, certified by the Secretary of the Company to be
true and complete, of the bylaws of the Company as in effect on the date of
such resolutions and at all times thereafter up to and including the date
hereof.
C-1
4. Certain minute book records of the Company and certain of its subsidiaries
as furnished to us by the Company.
5. Executed counterparts of the Underwriting Agreement.
6. Executed counterparts of the Indenture.
7. Specimen, certified by the Secretary of the Company to be a true and
correct specimen, of the global Note.
8. Conformed copies of the Registration Statement on Form S-3 (File No. 333-
83411), Pre-Effective Amendment No. 1, Post-Effective Amendment No. 1 and
Post-Effective Amendment No. 2 thereto, filed by the Company with the
Commission on July 21, 1999, September 17, 1999, October 26, 2001 and
December [_], 2001 respectively, pursuant to the Securities Act of 1933, as
amended (the "1933 Act"), and the rules and regulations promulgated by the
Commission thereunder (the "1933 Act Regulations"), and of the Registration
Statement on Form S-3 (File No. 333-_____) filed by the Company with the
Commission on December 11, 2001 pursuant to Rule 462 (b) under the 1933 Act
(the "Rule 462 (b) Registration Statement"), relating to, among other things,
debt securities, including the Notes (such Registration Statement, in the form
in which it became effective on December 11, 2001 by the filing of Post-
Effective Amendment No. 2 thereto, together with the Rule 462 (b) Registration
Statement, and the Prospectus, dated November 30, 1999, constituting a part of
such Registration Statement, as supplemented by a Prospectus Supplement, dated
December [_], 2001, relating to the Notes, including (except as otherwise
specified) the documents incorporated or deemed to be incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, are
hereinafter referred to as the "Registration Statement" and the "Prospectus,"
respectively).
9. Evidence satisfactory to us to the effect that the Registration Statement
became effective under the 1933 Act.
In rendering this opinion, we have relied, as to matters of fact, upon
representations and certificates of officers and employees of the Company and
its subsidiaries, certificates of third parties and certificates of governmental
authorities, and we have assumed the genuineness of signatures of all persons
signing any documents, the authority of all persons signing any document on
behalf of parties thereto, the authority of all governmental authorities, the
truth and accuracy of all matters of fact set forth in all certificates
furnished to us, the authenticity of all documents submitted to us as originals
and the conformity to original documents of all documents submitted to us as
certified, conformed or photostatic copies.
We have also assumed the conformity of the documents filed with the
Commission via the Electronic Data Gathering, Analysis and Retrieval System
("XXXXX"), except for required XXXXX formatting changes, to physical copies of
the documents delivered to the Company and submitted for our examination.
Based upon the foregoing, and subject to the limitations, qualifications and
exceptions set forth herein, we are of the opinion that:
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(i) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(ii) The Indenture has been duly qualified under the Trust Indenture Act,
has been duly authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company, enforceable against the Company
in accordance with its terms, except as the enforceability thereof may be
limited by fraudulent conveyance, bankruptcy, insolvency, reorganization,
liquidation, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general principles of equity, regardless
of whether such enforceability is considered in a proceeding in equity or
law.
(iii) The Notes have been duly authorized by the Company and, when duly
executed and delivered by the Company and authenticated by the Trustee in
the manner provided in the Indenture and delivered against payment of the
purchase price therefor specified in the Underwriting Agreement, will be
entitled to the benefits of the Indenture and will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforceability thereof may be
limited by fraudulent conveyance, bankruptcy, insolvency, reorganization,
liquidation, moratorium or other similar laws relating to or affecting
creditor's rights generally or by general principles of equity, regardless
of whether such enforceability is considered in a proceeding in equity or
law.
(iv) The Notes and the Indenture conform as to legal matters in all
material respects to the descriptions thereof contained in the Prospectus.
We have participated in conferences with officers and representatives of
the Company, representatives of the independent accountants of the Company, and
representatives of the Underwriters at which the contents of the Registration
Statement (including the Rule 462 (b) Registration Statement, if any) and the
Prospectus and related matters were discussed, but we have not participated in
the preparation of the documents incorporated by reference in the Registration
Statement (including the Rule 462 (b) Registration Statement, if any) and the
Prospectus and, accordingly, our knowledge of those documents is limited to our
review thereof. We have made no independent check or verification of the
accuracy, completeness or fairness of the statements contained in the
Registration Statement (including the Rule 462 (b) Registration Statement, if
any) or the Prospectus (other than as stated in paragraph (iv) above) and we are
not passing upon or assuming any responsibility therefor (other than as
described above). Nothing, however, has come to our attention that would lead
us to believe that (i) the Registration Statement (including the Rule 462 (b)
Registration Statement, if any) and the Prospectus (excluding the documents
incorporated by reference in the Prospectus and except for the financial
statements and supporting schedules and other financial data included or
incorporated by reference therein or omitted therefrom, as to which we express
no belief, and except for that part of the Registration Statement that
constituted the Statements of Eligibility and Qualification of the trustees
referred to in the Registration Statement (the "Form T-1s")), do not comply as
to form in all material respects with the requirements of the 1933 Act and the
applicable rules and regulations thereunder, (ii) the Registration Statement
(except for financial statements and
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supporting schedules and other financial data included or incorporated by
reference therein or omitted therefrom, as to which we express no belief and
except for the Form T-1s), on its effective date (or, if an amendment to the
Registration Statement or an Annual Report on Form 10-K has been filed by the
Company with the Commission subsequent to the effectiveness of the Registration
Statement, then at the time such amendment became effective or at the time of
the most recent such filing, as the case may be) contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or (iii)
that the Prospectus (except for financial statements and supporting schedules
and other financial data included or incorporated by reference therein or
omitted therefrom, as to which we express no belief, and except for the Form T-
1s), at the applicable date of the Prospectus or at the date hereof, included or
includes an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
We have examined the opinions of (a) Xxxxx X. XxXxx, Esq., Vice President,
Associate Counsel and Secretary of the Company and (b) Xxxxxxx, Xxxxxx & Xxxx,
P.C., special counsel for the Company, each dated the date hereof and delivered
to you pursuant to Sections 3(b) and 3(c), respectively, of the Underwriting
Agreement, and we believe that such opinions are substantially responsive to the
requirements therefor.
We express no opinion as to the laws of any jurisdiction other than the
laws of the State of New York (excluding the municipal laws or the laws, rules
and regulations of any local agencies or governmental authorities of or within
the State of New York), the General Corporation Law of the State of Delaware,
and the federal laws of the United States of America. The opinions expressed
herein are given as of the date hereof, and we undertake no obligation to
supplement this letter if any applicable laws change after the date hereof or if
we become aware of any facts that might change the opinions expressed herein
after the date hereof or for any other reason.
This opinion is solely for the benefit of the Underwriters and may not be
relied upon in any manner whatsoever by any other person or entity without our
express written consent, except that Xxxxxxx, Xxxxxx & Xxxx, P.C., special
counsel to the Company, may rely on our opinions in paragraphs (ii) and (iii) as
to matters governed by the laws of the State of New York in rendering their
opinion to be delivered pursuant to the Underwriting Agreement.
Very truly yours,
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