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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
September 30, 1994 (September 30, 1994)
TORCHMARK CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 1-8052 63-0780404
(State or other (Commission (IRS employer
jurisdiction of file number) identification no.)
incorporation)
2001 Third Avenue South, Birmingham, Alabama 35233
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code:
(205) 325-4200
Page 1 of __ sequentially numbered pages. The Index to Exhibits is located on
sequentially numbered page 2.
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ITEM 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits.
1. Torchmark Capital L.L.C. Underwriting Agreement Standard
Provisions (Preferred Securities), dated September 30, 1994.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
TORCHMARK CORPORATION
Date: September 30, 1994 By: /s/ Carol A. McCoy
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Name: Carol A. McCoy
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Title: Secretary
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EXHIBIT 1
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Torchmark Capital L.L.C. Underwriting Agreement
Standard Provisions (Preferred Securities)
September 30, 1994
From time to time, Torchmark Capital L.L.C., a Delaware limited liability
company (the "Company"), may enter into one or more underwriting agreements that
provide for the sale of designated 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").
Unless otherwise defined herein, terms defined in the Underwriting Agreement are
used herein as therein defined.
I.
The Company proposes to issue from time to time preferred limited liability
company interests (the "Securities") in one or more series pursuant to written
action or actions of Torchmark Corporation, a Delaware corporation
("Torchmark"), as managing member (the "Managing Member") of the Company, taken
under the Amended and Restated Limited Liability Company Agreement (the "LLC
Agreement") dated as of October 7, 1994, among the Managing Member and the other
members of the Company. The Securities will be guaranteed by Torchmark to the
extent set forth in a Payment and Guarantee Agreement (the "Guarantee") dated as
of October 7, 1994. The proceeds from the sale of the Securities will be lent
by the Company to Torchmark pursuant to the Loan Agreement ("Loan Agreement")
dated as of October 7, 1994, between Torchmark and the Company. The Securities
may have varying designations, voting rights, distribution rates and times of
payment of distributions, liquidation preferences, selling prices, and
redemption terms.
The Company and Torchmark have filed with the Securities and Exchange
Commission (the "Commission") a registration statement including a prospectus
and preliminary prospectus supplement relating to the Securities and have
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filed with or promptly hereafter will file with the Commission a final
prospectus supplement specifically relating to the Securities pursuant to Rule
424 under the Securities Act of 1933. The term "Registration Statement" means
the registration statement, including the exhibits thereto, as amended to the
date of the Underwriting Agreement. The term "Basic Prospectus" means the
prospectus included in the Registration Statement. The term "Prospectus" means
the Basic Prospectus together with the final prospectus supplement or
supplements specifically relating to the Securities, as filed with or promptly
hereafter filed with the Commission pursuant to Rule 424. The terms
"preliminary prospectus" means a preliminary prospectus supplement specifically
relating to the Securities together with the Basic Prospectus. As used herein,
the terms "Registration Statement", "Basic Prospectus", "Prospectus", "final
prospectus supplement" and "preliminary prospectus supplement" shall include in
each case the material, if any, incorporated by reference therein.
The term "Firm Underwriters' Securities" means the Securities to be
purchased by the Underwriters herein. The term "Additional Underwriters'
Securities" means the additional 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 are referred to herein as the "Underwriters'
Securities". The term "Contract Securities" means the Securities, if any, to be
purchased pursuant to the delayed delivery contracts referred to below.
II.
The obligation of the Company to sell the Securities, the obligation of
Torchmark to guarantee the Securities and the obligation of an Underwriter to
purchase the Securities will be evidenced by facsimile exchange or other written
communications at the time the Company determines to sell the Securities,
Torchmark agrees to guarantee the Securities, and an Underwriter agrees to
purchase the Securities.
An Underwriting Agreement shall incorporate by reference the provisions of
this Agreement and be substantially in the form of Exhibit A hereto and shall
specify:
(i) the name of each Underwriter purchasing the Securities and the
name of the Underwriters who shall act
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as representatives for all of the Underwriters (the "Representatives");
(ii) the number of Securities to be purchased by each Underwriter;
(iii) the purchase price to be paid by the Underwriters for the
Securities;
(iv) the times and dates of delivery of and payment for the Securities
("Closing" or "Closing Date"), including the form of payment;
(v) the details of the terms of the offering of the Securities to the
public, which will be reflected in a final prospectus supplement to the
Prospectus relating to the offering of the Securities;
(vi) the file number of the Registration Statement relating to the
Securities; and
(vii) any other changes which may be agreed to at the time.
If more than one firm agrees to purchase the Securities, the
obligation of each Underwriter shall be several and not joint. Securities, when
delivered, will be in such quantities and registered in such names as the
Underwriters request.
III.
If the final prospectus supplement provides for sales of Contract
Securities, the Company hereby authorizes the Underwriters to solicit offers to
purchase Contract Securities on the terms and subject to the conditions set
forth in the Prospectus pursuant to delayed delivery contracts substantially in
the form of Schedule I attached hereto ("Delayed Delivery Contracts") but with
such changes therein as the Company may authorize or approve. Delayed Delivery
Contracts are to be with institutional investors approved by the Company and of
the types set forth in the Prospectus. On the Closing Date (as hereinafter
defined), Torchmark will pay the Representatives as compensation, for the
accounts of the Underwriters, the fee set forth in the Underwriting Agreement in
respect of the amount of Contract Securities. The Underwriters will not have
any responsibility in respect of the validity or the performance of Delayed
Delivery Contracts.
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If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the Contract Securities shall be deducted from the
Securities to be purchased by the several Underwriters and the aggregate amount
of Securities to be purchased by each Underwriter shall be reduced pro rata in
proportion to the amount of Securities set forth opposite each Underwriter's
name in the Underwriting Agreement, except to the extent that the
Representatives determine that such reduction shall be other than pro rata and
so advises the Company.
IV.
The Company is advised by the Representatives 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
Representatives' judgment is advisable. The terms of the public offering of the
Underwriters' Securities are set forth in the Prospectus.
V.
Payment for the Underwriters' Securities shall be made by certified or
official bank check or checks payable to the order of the Company in New York
Clearing House funds at the time and place set forth in the Underwriting
Agreement, upon delivery to the Representatives for the respective accounts of
the several Underwriters of the Underwriters' Securities registered in such
names and in such denominations as the Representatives 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 are herein referred to as the "Option Closing Date."
VI.
The several obligations of the Underwriters hereunder, including the
obligations of an Underwriter to purchase and pay for Securities under an
Underwriting Agreement, are subject to the accuracy of the representations and
warranties on the part of the Company and Torchmark herein on and as of the
Closing Date and, if applicable, the Option Closing Date, to the performance by
the Company and Torchmark of their obligations hereunder and to the following
additional conditions precedent:
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(a) The Prospectus as amended or supplemented in relation to such
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 under the Securities Act of 1933 and in accordance
with Article VII(b) hereof; no stop order suspending the effectiveness of
the Registration Statement shall be in effect, and no proceedings for such
purpose shall be pending before or threatened by the Commission; all
requests for additional information on the part of the Commission shall
have been complied with to the Representatives' reasonable satisfaction;
since the respective dates as of which information is given in the
Prospectus as amended or supplemented prior to the date of the Underwriting
Agreement relating to the Securities there shall not have been any change
in the limited liability company interests or long-term debt of the Company
or in the capital stock or long-term debt of Torchmark or any of its
subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company,
Torchmark and its subsidiaries taken as a whole (in the case of Torchmark's
subsidiaries engaged in the business of insurance (each an "Insurance
Subsidiary," and collectively, the "Insurance Subsidiaries"), on either a
statutory or GAAP basis), otherwise than as set forth or contemplated in
the Prospectus as amended or supplemented prior to the date of the
Underwriting Agreement relating to the Securities, the effect of which is
in the reasonable 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 Securities on the terms and in the manner
contemplated in the Prospectus as amended or supplemented relating to the
Securities; and there shall not have been any announcement by any
"nationally recognized statistical rating organization", as defined for
purposes of Rule 436(g) under the Securities Act of 1933, that it is
downgrading its rating assigned to any debt securities of Torchmark or any
securities of Torchmark or the Company, or it is reviewing its rating
assigned to any debt securities or securities of Torchmark or the Company
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with a view to possible downgrading, or with negative implications, or
direction not determined.
(b) The Representatives shall have received on the Closing Date an
opinion of Carol A. McCoy, Associate Counsel for Torchmark, on behalf of
Torchmark acting in its own capacity and as Managing Member of the Company,
dated the Closing Date, to the effect that:
(i) Torchmark has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with all necessary corporate power and authority to own
its properties and conduct its business as described in the
Prospectus, as amended or supplemented;
(ii) Torchmark has an authorized capitalization as set forth in
the Prospectus as amended or supplemented, and all of the issued
securities of capital stock of Torchmark have been duly and validly
authorized and issued and are fully paid and non-assessable;
(iii) The Company has an authorized capitalization as set forth in
the Prospectus, as amended or supplemented; all of the issued Common
Securities of the Company have been duly authorized and validly issued
and are owned directly or indirectly by Torchmark, to such counsel's
knowledge, free and clear of any perfected security interests and any
other security interests, claims, liens or encumbrances; and the
Company is not a party to or otherwise bound by any agreement other
than those described in the Prospectus, as amended or supplemented;
(iv) Each of the Company and Torchmark has been duly qualified
as a foreign corporation for the transaction of business and is in
good standing under the laws of each other United States 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 failure to be so qualified in any such
jurisdiction (such counsel being entitled to rely in respect of the
opinion in clause (iv) upon opinions of local counsel and in respect
of matters of fact upon certificates of public officials or officers
of Torchmark, provided
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that such counsel shall state that she believes that she is justified
in so relying upon such opinions and certificates);
(v) Each of Liberty National Life Insurance Company, Globe
Life and Accident Insurance Company, United American Insurance Company
and United Investors Management Company (collectively the "Principal
Subsidiaries") has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation 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, in the
case of those Principal Subsidiaries engaged primarily in the business
of insurance, each jurisdiction in which such Principal Subsidiary has
written 5% or more of the total amount of premiums written by it
during each of the last two calendar years, except where the failure
to be so qualified in any such jurisdiction would have a material
adverse effect on the consolidated financial condition, stockholders'
equity or results of operations of the Company, Torchmark and its
subsidiaries taken as a whole; and all of the issued shares of capital
stock of each Principal Subsidiary have been duly and validly
authorized and issued, are fully paid and non-assessable, and (except
for directors' qualifying shares) to the best of such counsel's
knowledge are owned directly or indirectly by Torchmark, free and
clear of all liens, encumbrances, equities or claims (other than
contractual covenants restricting the disposition thereof);
(vi) To the best of such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal, insurance regulatory
or other governmental proceedings pending to which the Company,
Torchmark or any of its subsidiaries is a party or of which any
property of the Company, Torchmark or any of its subsidiaries is the
subject which, if determined adversely to the Company, Torchmark or
any of its subsidiaries, would individually or in the aggregate have a
material adverse effect on the current or future consolidated
financial condition, stockholders' equity or results of operations of
the Company, Torchmark and its subsidiaries taken as a whole; and to
the best of such counsel's knowledge, no such proceedings are
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threatened or contemplated by governmental authorities or threatened
by others;
(vii) The Underwriting Agreement, incorporating the standard
provisions set forth herein, has been duly authorized, executed and
delivered by the Company and Torchmark;
(viii) The issue and sale of the Securities being delivered at
the Closing Date and the compliance by the Company and Torchmark with
all of the provisions of this Agreement, the Underwriting Agreement,
the Guarantee and the Loan Agreement with respect to the Securities
and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Company or
Torchmark or any of its subsidiaries is a party or by which the
Company or Torchmark is bound or to which any of the property or
assets of the Company or Torchmark or any of its subsidiaries is
subject, except for such conflicts, breaches or violations that will
not have a material adverse effect on the consolidated financial
condition, stockholders' equity or results of operations of the
Company, Torchmark and its subsidiaries taken as a whole, nor will
such action result in any violation of (A) the provisions of the
certificate of incorporation or by-laws of Torchmark or the
certificate of formation of the Company or the LLC Agreement or (B)
any statute or any order, rule or regulation known to such counsel of
any court or insurance regulatory authority or other governmental
agency or body having jurisdiction over the Company or Torchmark or
any of its subsidiaries or any of their properties, except, with
respect to clause (B) of paragraph (viii), such violations as would
not have a material adverse effect on the consolidated financial
condition, stockholders' equity or results of operations of the
Company, Torchmark and its subsidiaries taken as a whole, or would not
affect the validity of or otherwise have a material adverse effect on
the issuance or sale of the Securities;
(ix) 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
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issue and sale of the Securities being delivered at such Closing Date
or the consummation by the Company or Torchmark of the transactions
contemplated by the Underwriting Agreement, incorporating the standard
provisions set forth herein, except such as have been obtained under
the Securities Act of 1933 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; and
(x) The documents incorporated by reference in the Prospectus
as amended or supplemented (other than the financial statements and
related schedules, notes and other financial and statistical data
included or incorporated by reference 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 Securities Act of
1933 or the Securities Exchange Act of 1934, as applicable, and the
rules and regulations of the Commission thereunder; and she has no
reason to believe that any of such documents, when they became
effective or were so filed, as the case may be, contained, in the case
of a registration statement which became effective under the
Securities Act of 1933, 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 Securities Act of
1933 or the Securities Exchange Act of 1934 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 circumstances under which they were made when such documents
were so filed, not misleading.
(c) The Representatives shall have received on the Closing Date an
opinion of Hughes & Luce, L.L.P., special counsel for the Company and
Torchmark, dated the Closing Date, to the effect that:
(i) The Company has been duly formed and is validly existing
in good standing as a limited liability company under the laws of the
State of Delaware; under the LLC Agreement and the Delaware Limited
Liability Company Act (6 Del.C. (S) 18-101, et
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seq.), the Company has all necessary limited liability company power
---
and authority to own its properties and conduct its business as
described in the Prospectus as amended or supplemented;
(ii) The Securities conform in all material respects to the
description thereof contained in the Registration Statement and the
Prospectus as amended or supplemented;
(iii) The Company has an authorized capitalization as set forth in
the Prospectus, as amended or supplemented; all of the issued Common
Securities of the Company have been duly authorized and validly issued
and are owned directly or indirectly by Torchmark, to such counsel's
knowledge, free and clear of any perfected security interests and any
other security interests, claims, liens or encumbrances; and, to such
counsel's knowledge, the Company is not a party to or otherwise bound
by any agreement other than those described in the Prospectus as
amended or supplemented;
(iv) The Underwriting Agreement, incorporating the standard
provisions set forth herein, has been duly authorized, executed and
delivered by the Company and Torchmark;
(v) The LLC Agreement constitutes a valid and legally binding
agreement of Torchmark enforceable against Torchmark by the Preferred
Securityholders in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equitable
principles;
(vi) The Guarantee has been duly authorized, executed and
delivered by Torchmark and constitutes a valid and legally binding
obligation of Torchmark, enforceable against Torchmark in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and
to general equitable principles;
(vii) The Loan Agreement has been duly authorized, executed
and delivered by Torchmark and the Company and constitutes a valid and
legally
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binding obligation of Torchmark and the Company, enforceable against
Torchmark in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equitable principles;
(viii) The statements set forth in the Prospectus as amended
or supplemented under the captions "Description of Series A Preferred
Securities", "Description of the Guarantee" and "Description of the
Loans", insofar as they purport to constitute or contain a summary of
the material terms of the Securities, the Guarantee, the Loan
Agreement and the LLC Agreement, and under the captions "Plan of
Distribution" and "Underwriting", insofar as they purport to describe
the provisions of the laws and documents referred to therein, fairly
and accurately present the information called for with respect to such
statements;
(ix) Such counsel has reviewed its opinion on matters of U.S.
tax law set forth in the Prospectus as amended or supplemented
relating to the Securities being delivered at the Closing Date and
confirms such opinion to the Representatives;
(x) Neither the Company nor Torchmark is and, after giving
effect to the offering and sale of the Preferred Securities, will 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; and
(xi) The Registration Statement and the Prospectus as amended
or supplemented, and any further amendments or supplements thereto
made by the Company and Torchmark prior to the Closing Date (other
than the financial statements and related schedules, notes and other
financial data included or incorporated by reference therein, as to
which such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Securities Act of 1933
and the rules and regulations thereunder; although such counsel does
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
paragraph (viii) of Article VI(c), such counsel has
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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 Closing Date (other than the financial statements and related
schedules, notes and other financial data included or incorporated by
reference 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 such Closing Date, either the Registration Statement or
the Prospectus as amended or supplemented or any further amendment or
supplement thereto made by the Company and Torchmark prior to the
Closing Date (other than the financial statements and related
schedules, notes and other financial data included or incorporated by
reference 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) The Representatives shall have received on the Closing Date an
opinion of Davis Polk & Wardwell, counsel for the Underwriters, dated the
Closing Date, in form and substance satisfactory to the Representatives.
Such opinion shall provide that Carol A. McCoy, Associate Counsel for
Torchmark, acting on Torchmark's own behalf and in Torchmark's capacity as
Managing Member for the Company, and Hughes & Luce, L.L.P., special counsel
for the Company and Torchmark, shall be entitled to rely upon such opinion
as to matters of New York law.
(e) The Company and Torchmark shall have furnished or caused to be
furnished to the Representatives on the Closing Date certificates of
officers of Torchmark for itself and as Managing Member of the Company,
satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company and
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Torchmark herein at and as of such Closing Date, as to the performance by
the Company and Torchmark of all of its obligations hereunder to be
performed at or prior to such Closing Date, as to the matters set forth in
Article VI(a) above and as to such other matters as the Representatives may
reasonably request.
(f) The Representatives shall have received certificates of the
Secretary of State of Delaware, dated as of a recent date, as to the good
standing of the Company and Torchmark.
(g) The Representatives shall have received on the date of the
Underwriting Agreement and on the Closing Date, letters dated the date of
the Underwriting Agreement and the Closing Date in form and substance
satisfactory to the Representatives, from the independent public
accountants of Torchmark and American Income Holding, Inc. ("American
Income"), 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.
(h) Torchmark shall have been notified by the New York Stock Exchange
that listing thereon of the Securities has been authorized subject to
official notice of issuance.
The several obligations of the Underwriters to purchase Additional
Underwriters' Securities hereunder are subject to the delivery to the
Representatives on the Option Closing Date of such documents as the
Representatives may reasonably request with respect to the due authorization and
issuance of the Additional Underwriters' Securities and other matters related to
the issuance of the Additional Underwriters' Securities.
VII.
In further consideration of the agreements of the Underwriters
contained in this Agreement, Torchmark and the Company covenant as follows:
(a) To furnish the Representatives, without charge, three copies of
the Registration Statement including exhibits and materials, if any,
incorporated by reference therein and, during the period mentioned in
paragraph (c) below, as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and
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amendments thereto as the Representatives may reasonably request. The
terms "supplement" and "amendment" or "amend" as used in this Agreement
shall include all documents filed by Torchmark or the Company with the
Commission subsequent to the date of the Basic Prospectus, pursuant to the
Securities Exchange Act of 1934, which are deemed to be incorporated by
reference in the Prospectus;
(b) To prepare the Prospectus as amended and supplemented in relation
to the applicable Securities in a form approved (such approval not to be
unreasonably delayed or withheld) by the Representatives and to file such
Prospectus pursuant to Rule 424(b) under the Securities Act of 1933 not
later than the Commission's close of business on the second business day
following the execution and delivery of the Underwriting Agreement relating
to the applicable 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 Underwriting Agreement relating to such Securities and
prior to the Closing Date for such Securities without the approval of the
Representatives (such consent not to be unreasonably delayed or withheld)
for such Securities promptly after reasonable notice thereof; to advise the
Representatives promptly of any such amendment or supplement after the
Closing Date for such Securities 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 or Torchmark
with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 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
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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, promptly to use its best efforts to
obtain the withdrawal of such order;
(c) If, during such period after the first date of the public offering
of the Securities the Prospectus is required by law to be delivered, any
event shall occur or condition shall exist as a result of which it is
necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus
is delivered to a purchaser, not misleading, or if it is necessary to amend
or supplement the Prospectus to comply with law, forthwith to prepare and
furnish, at its own expense, to the Underwriters, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as
so amended or supplemented will not, in the light of the circumstances when
the Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus will comply with law;
(d) To arrange in cooperation with you to qualify the Securities for
offer and sale under the securities or Blue Sky laws of such jurisdiction
as the Representatives shall reasonably request and to pay all expenses
(including reasonable 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 earning statement of Torchmark, which may be
unaudited, covering the 12-month period following the offering of the
Securities which shall satisfy the provisions of Section 11(a) of the
Securities Act of 1933 and the applicable rules and regulations thereunder;
(f) During the period beginning from the date of the Underwriting
Agreement for such Securities and continuing to and including the earlier
of (i) the date on which the distribution of the Securities ceases, as
determined by the Underwriters, or (ii) the date which is 60 days after the
Closing Date, not to offer, sell, contract to sell or otherwise dispose of
any securities of the Company or Torchmark that are substantially similar
to the Securities or related Securities, or any securities convertible into
or exchangeable for, or that represent the right to receive, Securities or
such substantially similar securities of either the Company or
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Torchmark without the prior written consent of the Representatives; and
(g) To pay or cause to be paid the following: (i) the fees,
disbursements and expenses of their counsel and accountants in connection
with the registration of the Securities under the Securities Act of 1933
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 Underwriting Agreement, any Blue Sky Memorandum, closing documents
(including any compilations thereof) and any other documents in connection
with the offering, purchase, sale and delivery of the Securities; (iii) all
expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Article VII(d)
hereof, including the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with
the Blue Sky survey(s); (iv) any fees charged by securities rating services
for rating the Securities; (v) any fees and expenses in connection with
listing the Securities; (vi) the cost of preparing certificates, if any,
for the Securities; (vii) the cost and charges of any transfer agent or
registrar or dividend disbursing agent; and (viii) all other costs and
expenses incident to the performance of its obligations with regard to the
Securities which are not otherwise specifically provided for in Article
VII. It is understood, however, that, except as provided elsewhere in this
Agreement, 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.
VIII.
Each of Torchmark and the Company represents and warrants to each
Underwriter as follows:
(a) A registration statement on Form S-3 (File No. 33-51963) in
respect of the preferred securities of Torchmark and the Securities
(collectively, the "Registered Securities") has been filed with Commission;
such registration statement and any post-effective
16
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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 included therein, to the Representatives for each of the other
Underwriters have been declared effective by the Commission in such form;
no other document with respect to such registration statement or document
incorporated by reference therein has heretofore been filed since the
effective date, 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 Securities Act of 1933, each in the form
heretofore delivered to the Representatives, and the Current Reports on
Form 8-K dated March 25, September 20 and September 29, 1994 on Form 14D-9
dated September 15, 1994 and the Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1994 and June 30, 1994, filed by Torchmark with
the Commission and incorporated by reference in the registration statement;
and no stop order suspending the effectiveness of such registration
statement has been issued and no proceeding for that purpose has been
initiated or threatened by the Commission;
(b) Each document, if any, filed or to be filed pursuant to the
Securities Exchange Act of 1934 and incorporated by reference in the
Prospectus complied or will comply when so filed in all material respects
with such Act and the rules and regulations thereunder;
(c) Each part of the registration statement (including the documents
incorporated by reference therein), filed with the Commission pursuant to
the Securities Act of 1933 relating to the Securities, when such part
became effective, did not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading;
(d) Each preliminary prospectus, if any, filed pursuant to Rule 424
under the Securities Act of 1933 complied when so filed in all material
respects with such Act and the applicable rules and regulations thereunder;
(e) The Registration Statement and the Prospectus comply and, as
amended or supplemented, if applicable, will comply in all material
respects with the Securities Act of 1933 and the applicable rules and
regulations thereunder;
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(f) The Registration Statement and the Prospectus do 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 these
representations and warranties in Article VIII (c)-(f) do not apply to
statements or omissions in the Registration Statement, any preliminary
prospectus or the Prospectus based upon information furnished to the
Company in writing by any Underwriter expressly for use therein;
(g) Each of the Loan Agreement and the Guarantee by Torchmark for the
benefit of the holders of the Securities has been duly authorized, executed
and delivered by each of the Company and Torchmark and constitutes a valid
and legally binding agreement of each of the Company and Torchmark,
enforceable in accordance with their terms, subject, as to enforcement, to
applicable bankruptcy, insolvency, suspension of payments or other laws
relating to or affecting the enforcement of creditors' rights generally and
to general equitable principles; the Guarantee and the Loan Agreement will
conform to the descriptions thereof in the Prospectus as amended or
supplemented with respect to the Securities; the Guarantee and the Loan
Agreement will conform to the descriptions thereof in the Prospectus as
amended or supplemented with respect to the Securities;
(h) The Company has no subsidiaries. Neither the Company, Torchmark
nor any of Torchmark's Principal Subsidiaries have sustained since the date
of the latest audited financial statements included or incorporated by
reference in the Prospectus any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the
Prospectus; and, since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not been
any change in the capital stock or long-term debt of the Company, Torchmark
or any of Torchmark's subsidiaries, or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, consolidated financial
condition, stockholders' equity or results of operations of the Company,
Torchmark and Torchmark's subsidiaries taken as a whole, otherwise than as
set forth or contemplated in the Prospectus; and there
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has not been any reduction in the statutory capital or surplus of
Torchmark's Insurance Subsidiaries taken as a whole, otherwise than as set
forth or contemplated in the Prospectus, and all of the issued shares of
capital stock of Torchmark's Principal Subsidiaries have been duly and
validly authorized and issued, are fully paid and non-assessable, and
(except for directors' qualifying shares) are owned directly or indirectly
by Torchmark, free and clear of all liens, encumbrances, equities or
claims;
(i) The Company has been duly formed and is validly existing as a
limited liability company in good standing under the laws of the State of
Delaware, with all necessary limited liability company power and authority
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 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;
(j) Torchmark and its Principal Subsidiaries have been duly
incorporated and are validly existing as corporations in good standing
under the laws of their respective jurisdictions of incorporation with
power and authority (corporate and other) to own their properties and
conduct their business as described in the Prospectus and have been duly
qualified as foreign corporations for the transaction of business under the
laws of, in the case of Torchmark each other jurisdiction in which
Torchmark owns or leases properties, or conducts any business, so as to
require such qualification, or in the case of Torchmark's Principal
Subsidiaries engaged primarily in the business of insurance, each
jurisdiction in which each such Principal Subsidiary has written 5% or more
of the total amount of premiums written by it during each of the last two
calendar years, except where the failure to be so qualified in any such
jurisdiction would not have a material adverse effect on the consolidated
financial condition, stockholders' equity or results of operations of the
Company, Torchmark and its subsidiaries taken as a whole; neither Torchmark
nor its Principal Subsidiaries are subject to any material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction;
(k) Each of Torchmark and its Principal Subsidiaries engaged in the
business of insurance are duly organized and licensed as insurance
companies or
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insurance holding companies, as the case may be, in their respective states
of incorporation (if so required) and, in the case of Torchmark, each other
jurisdiction where it is required to be so licensed or authorized to
conduct its business, and, in the case of Torchmark's Principal
Subsidiaries engaged in the business of insurance, each other jurisdiction
in which such Principal Subsidiary has written 5% or more of the total
amount of premiums written by it during each of the last two calendar
years, except for any such jurisdictions in which the failure to be so
licensed or authorized would not have a material adverse effect on the
consolidated financial condition, stockholders' equity or results of
operations of the Company, Torchmark and its subsidiaries taken as a whole;
Torchmark has not 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 Torchmark
or any of the Insurance Subsidiaries in any case where it could be
reasonably expected that the failure to obtain any such additional
authorization, approval, order, consent, license, certificate, permit,
registration or qualification would have a material adverse effect on the
consolidated financial condition, stockholders' equity or results of
operations of the Company, Torchmark and its subsidiaries taken as a whole;
(l) Torchmark has an authorized capitalization as set forth in the
Prospectus, as amended or supplemented; all of the issued shares of capital
stock of Torchmark have been duly and validly authorized and issued, are
fully paid and non-assessable and conform to the descriptions thereof
contained in the Prospectus;
(m) The LLC Agreement, which is in substantially the form filed or
incorporated by reference as an exhibit to the Registration Statement, has
been duly authorized by Torchmark and constitutes a valid and legally
binding agreement of Torchmark and the wholly-owned subsidiary of Torchmark
which is a party thereto enforceable against Torchmark and such subsidiary
by the members of the Company that hold Preferred Securities (the
"Preferred Securityholders") in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equitable
principles; the LLC Agreement will conform in all material respects to the
20
<PAGE>
descriptions thereof in the Prospectus as amended or supplemented with
respect to the Securities;
(n) The Securities have been duly and validly authorized, and, when
issued and delivered pursuant to this Agreement and the Underwriting
Agreement with respect to such Securities, are and will be duly and validly
issued and fully paid and non-assessable preferred limited liability
company interests in the Company, as to which the Preferred
Securityholders, in their capacity as members of the Company, will have no
liability solely by reason of being Preferred Securityholders in excess of
their obligations to make payments provided for in the LLC Agreement and
their share of the Company's assets and undistributed profits (subject to
any obligation of a Preferred Securityholder to repay any funds wrongfully
distributed to it); and the Securities conform to the description thereof
contained in the Registration Statement and the Securities will conform to
the description thereof contained in the Prospectus as amended or
supplemented with respect to such Securities;
(o) The Company has an authorized capitalization as set forth in the
Prospectus, as amended or supplemented; all of the issued common securities
of the Company have been duly authorized and validly issued and are owned
directly or indirectly by Torchmark, free and clear of all liens,
encumbrances, equities or claims; and the Company is not a party to or
otherwise bound by any agreement other than those described in the
Prospectus;
(p) The issue and sale of the Securities and the compliance by the
Company and Torchmark with all of the provisions of this Agreement and any
Underwriting Agreement and the execution, delivery and performance by
Torchmark of its obligations under the Guarantee and the Loan Agreement and
the consummation of the transactions contemplated herein and therein will
not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the
Company or Torchmark is a party or by which the Company or Torchmark are
bound or to which any of the property or assets of the Company or Torchmark
is subject, except for such conflicts, breaches or violations that will not
have a material adverse effect on the consolidated financial condition,
stockholders' equity or results of operations of the Company, Torchmark and
its subsidiaries taken as a whole, nor will such action result in any
violation of
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<PAGE>
(i) the provisions of the certificate of formation of the Company, the LLC
Agreement or the certificate of incorporation or by-laws of Torchmark or
(ii) any statute or any order, rule or regulation of any court or insurance
regulatory authority or other governmental agency or body having
jurisdiction over the Company or Torchmark or any of its subsidiaries or
any of their properties, except with respect to clause (ii) of this
paragraph (p), such violations as would not have a material adverse effect
on the consolidated financial condition, stockholders' equity or results of
operations of the Company, Torchmark and its subsidiaries taken as a whole,
or would not affect the validity of or otherwise have a material adverse
effect on the issuance or sale of the securities; no consent, approval,
authorization, order, registration or qualification of or with any such
court or 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 or Torchmark of the transactions contemplated
by the Underwriting Agreement, incorporating the standard provisions set
forth herein, the Guarantee or the Loan Agreement, except such as have
been, or will have been prior to the Closing Date, obtained under the
Securities Act of 1933 and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities
or Blue Sky laws or insurance securities laws in connection with the
purchase and distribution of the Securities by the Underwriters;
(q) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company, Torchmark or any of
its subsidiaries is a party or of which any property of the Company,
Torchmark or any of its subsidiaries is subject, which, if determined
adversely to the Company, Torchmark or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
current or future consolidated financial condition, stockholders' equity or
results of operations of the Company, Torchmark and its subsidiaries taken
as a whole, and, to the best of the Company's and Torchmark's knowledge, no
such proceedings are threatened or contemplated by governmental authorities
or threatened by others;
(r) Neither the Company, Torchmark nor any of its subsidiaries is in
violation of its certificate of formation or certificate of incorporation,
as the case may be, or by-laws, or is in default in the performance or
observance of any obligation, agreement, covenant or condition contained in
any indenture, mortgage, deed of
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<PAGE>
trust, loan agreement, lease or other agreement or instrument to which it
is a party or by which it or any of its properties may be bound, except for
such conflicts, breaches or violations that will not have a material
adverse effect on the consolidated financial condition, stockholders'
equity or results of operations of the Company, Torchmark and its
subsidiaries taken as a whole;
(s) The statements set forth in the Prospectus as amended or
supplemented under the captions "Description of Series A Preferred
Securities", "Description of the Guarantee" and "Description of the Loans",
insofar as they purport to constitute a summary of the material terms of
the Securities, the Guarantee and the Loan Agreement, and the statements
set forth under the captions "Certain United States Income Tax
Consequences", "Plan of Distribution" and "Underwriting", insofar as they
purport to describe the provisions of the laws and documents referred to
therein, fairly and accurately present the information called for with
respect to such statements;
(t) Neither the Company nor Torchmark is, after giving effect to the
offering and sale of the Securities, 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");
(u) 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; and
(v) KPMG Peat Marwick LLP, who have certified certain financial
statements of Torchmark and American Income, are independent public
accountants as required by the Securities Act of 1933 and the rules and
regulations of the Commission thereunder.
Each of Torchmark and the Company jointly and severally 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 of 1933 or Section 20 of the Securities Exchange Act of 1934,
from and against any and all losses, claims, damages and liabilities caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement, any preliminary prospectus or the Prospectus (as
amended or supplemented if Torchmark or the
23
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Company shall have furnished any amendments or supplements thereto), 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,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriters in connection with investigating or defending any
such action or claim as such expenses are incurred, except insofar as such
losses, claims, damages or liabilities are caused by any untrue statement or
omission or alleged untrue statement or omission based upon information
furnished to Torchmark or the Company in writing by any Underwriter expressly
for use therein, and provided, further, that neither Torchmark nor the Company
shall be liable to any Underwriter under this paragraph with respect to any
preliminary prospectus to the extent that any such loss, claim, damage or
liability of such Underwriter results from the fact that such Underwriter sold
the Securities to a person as to whom it shall be established that there was not
sent or given, at or prior to the written confirmation of such sale, a copy of
the Prospectus (excluding documents incorporated by reference) or of the
Prospectus as then amended or supplemented (excluding documents incorporated by
reference) in any case where such delivery is required by the Securities Act of
1933 if the Company has previously furnished copies thereof in sufficient
quantity to such Underwriter and the loss, claim, damage or liability of such
Underwriter results from an untrue statement or omission of a material fact
contained in the preliminary prospectus and corrected in the Prospectus
(excluding documents incorporated by reference) or in the Prospectus as then
amended or supplemented (excluding documents incorporated by reference).
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless Torchmark, its directors, its officers who sign the Registration
Statement, the Company, the persons who sign the Registration Statement on the
Company's behalf and each person, if any, who controls Torchmark or the Company
from and against any and all losses, claims, damages and liabilities caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement, any preliminary prospectus or the Prospectus (as
amended or supplemented if Torchmark or the Company shall have furnished any
amendments or supplements thereto), 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, but only with respect
to information relating to such Underwriter furnished to Torchmark or the
Company in writing by such Underwriter expressly for use in the Registration
Statement, any preliminary prospectus or preliminary prospectus supplement or
the Prospectus; each Underwriter will reimburse
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<PAGE>
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.
In case any proceeding (including any governmental 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 or (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
conflicting interests between them. 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 reimbursed as they are
incurred. Such firm shall be designated in writing by the Representatives in
the case of parties indemnified pursuant to the second preceding paragraph and
by Torchmark or the Company in the case of parties indemnified pursuant to the
first preceding paragraph. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent 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. 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
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indemnified party from all liability arising out of such action or claim and
(ii) does not include any statement as to, or an admission of, fault,
culpability or a failure to act, by or on behalf of any indemnified party.
If the indemnification provided for in Article VIII under the second
or third paragraphs hereof is unavailable in respect of any losses, claims,
damages or liabilities referred to therein, then each indemnifying party under
such paragraph, 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 Torchmark and the Company on the
one hand and the Underwriters on the other from the offering of the 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
Torchmark and 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 Torchmark and the Company on
the one hand and the Underwriters on the other in connection with the offering
of the Securities shall be deemed to be in the same proportion as the net
proceeds from the offering of such Securities (before deducting expenses)
received by the Company bears to the total underwriting discounts and
commissions received by the Underwriters in respect thereof, in each case as set
forth in the table on the cover of the Prospectus. The relative fault of
Torchmark and the Company on the one hand and of the Underwriters on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by Torchmark or 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.
Torchmark, the Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to Article VIII were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable 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
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<PAGE>
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 Article VIII, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act of 1933) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to Article VIII are several, in proportion to
the respective amounts of Securities purchased by each of such Underwriters, and
not joint. The remedies provided for in Article VIII are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in Article VIII
and the representations and warranties of Torchmark and the Company in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or on behalf of any Underwriter or any person controlling any
Underwriter or by or on behalf of Torchmark, its directors or officers, the
Company, the persons who sign the Registration Statement on the Company's or
Torchmark's behalf or any person controlling Torchmark or the Company and (iii)
acceptance of and payment for any of the Securities.
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IX.
This Agreement shall be subject to termination in the absolute
discretion of the Representatives, by notice given to the Company, if prior to
the Closing Date, there shall have occurred (i) a suspension or material
limitation in trading in securities generally on the New York Stock Exchange or
any other exchange on which the Securities are listed, (ii) a suspension or
material limitation in trading in the Company's or Torchmark's securities on the
New York Stock Exchange; (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) the outbreak or escalation of hostilities involving
the United States or the declaration of the United States of a national
emergency or war, if the effect of any such event specified in clause (iv), in
the judgment of the Representatives, makes it impracticable or inadvisable to
proceed on the terms and in the manner contemplated in the Prospectus as first
amended or supplemented relating to the Securities.
X.
If on the Closing Date any one or more of the Underwriters shall fail
or refuse to purchase Underwriters' Securities that it or they have agreed to
purchase on such date ("Defaulting Underwriters" whether one or more), and the
aggregate amount of Underwriters' Securities which the Defaulting Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate amount of the Securities to be purchased on such date, the Non-
Defaulting Underwriters ("Non-Defaulting Underwriters" whether one or more) may
make arrangements satisfactory to the Company and Torchmark for the purchase of
such securities by other persons, including any of the Non-Defaulting
Underwriters, but if no such arrangements are made by the Closing Date, the Non-
Defaulting Underwriters shall be obligated severally in the proportions that the
amount of Securities set forth opposite their respective names in the
Underwriting Agreement bears to the aggregate amount of Securities set forth
opposite the names of all the Non-Defaulting Underwriters, to purchase the
Securities which the Defaulting Underwriters agreed but failed or refused to
purchase on such date; provided that in no event shall the amount of
--------
Underwriters' Securities that any Non-Defaulting Underwriter has agreed to
purchase pursuant to the Underwriting Agreement be increased pursuant to Article
X by an amount in excess of one-ninth of such amount of Underwriters' Securities
without the written consent of the Non-Defaulting Underwriter. If on the
Closing Date any Underwriter or Underwriters shall fail or refuse to purchase
Underwriters' Securities and the aggregate amount of
28
<PAGE>
Underwriters' Securities with respect to which such default occurs is more than
one-tenth of the aggregate amount of Underwriters' Securities to be purchased on
such date, and arrangements satisfactory to Torchmark and the Company for the
purchase of such Underwriters' Securities are not made within 36 hours after
such default, this Agreement shall terminate without liability on the part of
the Non-Defaulting Underwriters or the Company or Torchmark, except for the
expenses to be borne by the Company and Torchmark and the Underwriters as
provided in Article VII(g) hereof and the indemnity and contribution provisions
in Article VIII hereof. In any such case either Torchmark or the Company shall
have the right to postpone the Closing Date but in no event for longer then
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. Any action taken under this paragraph shall not relieve the
Defaulting Underwriters from liability in respect of any default of such
Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters or any of
them, because of any failure or refusal on the part of Torchmark or the Company
to comply with the terms or to fulfill any of the conditions of this Agreement,
or if for any reason Torchmark or the Company shall be unable to perform their
respective obligations under this Agreement, Torchmark or the Company shall be
severally liable for and shall 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) reasonably incurred by such Underwriters in connection with the
Securities.
The respective representations, warranties, agreements and indemnities
of the Company, Torchmark and the Underwriters set forth in or made pursuant
hereto will remain in full force and effect, regardless of any investigation, or
statement as to the results thereof, made by or on behalf of the Underwriters,
the Company or Torchmark, or any of their officers or directors or any
controlling person, and will survive delivery of and payment for the Securities.
The provisions of Article VII(d) and (g) and the indemnity and contribution
provisions contained in Article VIII shall survive the termination or
cancellation of any underwriting agreement.
Each of the Underwriters severally represents and warrants to the
Company and Torchmark that the information furnished to the Company or Torchmark
in writing by such Underwriter or by you expressly for use in the preparation of
the Registration Statement or the Prospectus does not, and any
29
<PAGE>
amendments thereof or supplements thereto thus furnished will not, contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading.
In all dealings hereunder, the Representatives shall act on behalf of
each of the Underwriters, and the parties hereto shall be entitled to act and
rely on any statement, request, notice or agreement on behalf of any Underwriter
made or given by the Representatives.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to contracts made and to be
performed in the State of New York.
This Agreement has been and is made solely for the benefit of the
Underwriters and the Company and Torchmark, and the controlling persons,
directors and officers referred to herein, and their respective successors,
assigns, executors and administrators. No other person shall acquire or have
any right under or by virtue of this Agreement.
30
<PAGE>
Schedule I
DELAYED DELIVERY CONTRACT
__________, 199_
Dear Sirs:
The undersigned hereby agrees to purchase from Torchmark Capital
L.L.C., a Delaware limited liability company (the "Company"), and the Company
agrees to sell to the undersigned, and Torchmark Corporation, a Delaware
corporation, ("Torchmark"), agrees to guarantee to the extent set forth in the
Company's and Torchmark's Prospectus dated July 1, 1994 (the "Prospectus") and
Prospectus Supplement dated September __, 1994 (the "Prospectus Supplement") the
Company's securities described in Schedule A annexed hereto (the "Securities"),
offered by the Prospectus and Prospectus Supplement, receipt of copies of which
are hereby acknowledged, at a purchase price stated in Schedule A and on the
further terms and conditions set forth in this Agreement. The undersigned does
not contemplate selling Securities prior to making payment therefor.
The undersigned will purchase from the Company Securities in the
amount on the delivery dates set forth in Schedule A. Each date on which
Securities are to be purchased hereunder is hereinafter referred to as a
"Delivery Date."
Payment for the Securities which the undersigned has agreed to
purchase on each Delivery Date shall be made to the Company or its order by
certified or official bank check in New York Clearing House funds at the office
of Davis Polk & Wardwell, 450 Lexington Avenue, New York, N.Y., at 10:00 A.M.
(New York time) on the Delivery Date, upon delivery to the undersigned of the
Securities to be purchased by the undersigned on the Delivery Date, in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than five
full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date shall be subject to the conditions that
(1) the purchase of
<PAGE>
Securities to be make by the undersigned shall not at the time of delivery be
prohibited under the laws of the jurisdiction to which the undersigned is
subject and (2) the Company shall have sold, and delivery shall have taken place
to the underwriters (the "Underwriters") named in the Prospectus Supplement
referred to above of, such part of the Securities as is to be sold to them.
Promptly after completion of sale and delivery 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.
Failure to take delivery of any make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this agreement.
This Agreement 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.
If this Agreement is acceptable to the Company, it is requested that
the Company and Torchmark 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 agreement, as of the date first above
written, between the Company and Torchmark and the undersigned when such
counterpart is so mailed or delivered.
2
<PAGE>
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.
Yours very truly,
------------------------
(Purchaser)
By --------------------
--------------------
(Title)
--------------------
--------------------
(Address)
Accepted:
TORCHMARK CAPITAL L.L.C.
By: Torchmark Corporation,
a Delaware Corporation,
as Managing Member
By: ------------------------------
Name:
Title:
TORCHMARK CORPORATION
By: ------------------------------
Name:
Title:
3
<PAGE>
PURCHASER --- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed is
as follows: (Please print.)
<TABLE>
<CAPTION>
Telephone No.
Name (Including Area Code) Department
---- --------------------- ----------
<S> <C> <C>
----------- --------------------- ----------
</TABLE>
4
<PAGE>
SCHEDULE A
----------
Securities:
- ----------
Amounts to be Purchased:
- -----------------------
Purchase Price:
- --------------
Delivery Dates:
- --------------
5
<PAGE>
EXHIBIT A
---------
FORM OF UNDERWRITING AGREEMENT
_________ __, 1994
Torchmark Capital L.L.C.
Torchmark Corporation
c/o Torchmark Corporation
2001 Third Avenue South
Birmingham, Alabama 35233
Ladies & Gentlemen:
The undersigned (the "Representatives") understand that Torchmark
Capital L.L.C., a Delaware limited liability company (the "Company"), proposes
to issue and sell to the Underwriters named below (the "Underwriters") an
aggregate of _________ ___% Cumulative Monthly Income Preferred Securities,
Series A, liquidation preference $__ per security (the "Securities"), guaranteed
by Torchmark Corporation, a Delaware corporation ("Torchmark"), to the extent
set forth in the Prospectus Supplement and Prospectus relating to the
Securities. This Underwriting Agreement incorporates the terms and conditions
of the document entitled Torchmark Capital L.L.C. Underwriting Agreement
Standard Provisions (Preferred Securities) dated _______ __, 1994, which was
filed as an exhibit to Torchmark's Current Report on Form 8-K on ________ __,
1994 and incorporated by reference in the Company's and Torchmark's Registration
Statement (No. 33-51963) (the "Standard Provisions"). Capitalized terms not
otherwise defined have the meanings set forth in the Standard Provisions.
Subject to the terms and conditions set forth herein or incorporated
by reference herein, the Company hereby agrees to issue and sell to each of the
Underwriters, Torchmark agrees to guarantee as aforesaid and each of the
Underwriters agree to purchase, severally and not jointly, the amount of such
Securities set forth below opposite their names at a purchase price of $__ per
Security.
<PAGE>
<TABLE>
<CAPTION>
Series _
Preferred
Name Securities
---- ----------
<S> <C>
[Names of Representatives].......
[Names of Underwriters]..........
Total................... ----------
==========
</TABLE>
The Underwriters will pay for such Securities upon delivery thereof in
book-entry form through the facilities of the Depository Trust Company on
_______ __, 1994 at _________ (Eastern time), or at such other time and date as
the Representatives and the Company may agree in writing, at the offices of
___________________________________. The time and date of such payment are
hereinafter referred to as the Closing Date.
In consideration for the purchase by the Underwriters of the
Securities, the proceeds from the sale of which will be loaned by the Company to
Torchmark, Torchmark shall pay to the Underwriters as compensation $.____ per
Security. At the Closing Date, Torchmark shall pay, or cause to be paid, the
compensation payable to the Underwriters under this paragraph in New York
Clearing House funds payable to the order of ____________________, acting on
behalf of itself and the several Underwriters named above.
The Securities shall have the terms set forth in the Company's and
Torchmark's Prospectus Supplement dated _________ __, 1994 relating to the
Securities, and the Prospectus dated July 1, 1994, particularly as follows:
Optional Redemption: In whole or in part on or
after ________ __, 199_ at the Redemption Price
and upon the occurrence of certain Special Events
as described in the prospectus supplement
Mandatory Redemption: As described in the Prospectus Supplement
2
<PAGE>
Dividend Rate: ____% per annum
Dividend Payment Monthly in arrears on the last
Dates: day of each calendar month of each year,
commencing ______ __, 199_
All the provisions contained in the Standard Provisions are herein
incorporated by reference in their 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.
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below. This Agreement may be
signed in any number of counterparts with the same effect as if the signatures
thereto and hereto were upon the same instrument.
3
<PAGE>
Very truly yours,
[Names of Representatives]
By , acting
--------------------
on behalf of itself and the
several Underwriters named
herein
By ---------------------------
Name:
Title:
Accepted as of the date
written above:
TORCHMARK CAPITAL L.L.C.
By Torchmark Corporation,
as Managing Member
By ---------------------------
Name:
Title:
TORCHMARK CORPORATION
By ---------------------------
Name:
Title:
4
