<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 16, 1996
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------
UNUM CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
2211 CONGRESS STREET, PORTLAND, MAINE 04122
(207) 770-2211
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
<TABLE>
<S> <C>
DELAWARE 01-0405657
(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION
NUMBER)
</TABLE>
------------------------
KEVIN J. TIERNEY
SENIOR VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
UNUM CORPORATION
2211 CONGRESS STREET
PORTLAND, MAINE 04122
(207) 770-2211
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
COPIES TO:
<TABLE>
<S> <C> <C>
JOHN-PAUL DEROSA PHYLLIS G. KORFF WILLIAM D. TORCHIANA
UNUM CORPORATION SKADDEN, ARPS, SLATE, SULLIVAN & CROMWELL
2211 CONGRESS STREET MEAGHER & FLOM 125 BROAD STREET
PORTLAND, MAINE 04122 919 THIRD AVENUE NEW YORK, NEW YORK 10004
NEW YORK, NEW YORK 10022
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement as
determined by market conditions.
------------------------
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434
under the Securities Act, please check the following box. / /
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF EACH CLASS OF AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM
SECURITIES TO BE TO BE OFFERING PRICE AGGREGATE AMOUNT OF
REGISTERED REGISTERED(1) PER UNIT(2) OFFERING PRICE(1) REGISTRATION FEE
<S> <C> <C> <C> <C>
Debt Securities(3)....... 100%
Preferred Stock, $.10 par --
value(3)................
Common Stock, $.10 par $404,500,000(5) -- $404,500,000(5)(6) $139,484
value(3)(4).............
Warrants(7).............. --
</TABLE>
(1) In United States dollars or the equivalent thereof in any other currency,
currency unit or units, or composite currency or currencies.
(2) Estimated solely for the purpose of computing the registration fee.
(3) Also includes such indeterminate number of Debt Securities and shares of
Common Stock and Preferred Stock as may be issued upon conversion or
exchange of any Debt Securities or Preferred Stock that provide for
conversion or exchange into other Securities or upon exercise of Warrants
for such Securities.
(4) Includes Share Purchase Rights. Prior to the occurrence of certain events,
the Rights will not be exercisable or evidenced separately from the Common
Stock.
(5) Such amount represents the principal amount of any Debt Securities issued at
their principal amount, the issue price rather than the principal amount of
any Debt Securities issued at an original issue discount, the liquidation
preference of any Preferred Stock, the amount computed pursuant to Rule
457(c) for any Common Stock, the issue price of any Warrants and the
exercise price of any Securities issuable upon exercise of Warrants.
(6) No separate consideration will be received for the Debt Securities,
Preferred Stock or Common Stock issuable upon conversion of or in exchange
for Debt Securities or Preferred Stock.
(7) Warrants may be sold separately or with Debt Securities, Preferred Stock or
Common Stock.
Pursuant to Rule 429 under the Securities Act of 1933 the Prospectus
included herein also relates to $95,500,000 of securities registered as Debt
Securities, Preferred Stock, Common Stock and Warrants under Registration
Statement No. 33-69132, which was declared effective on October 8, 1993. In the
event any of such previously registered Securities are offered prior to the
effective date of this Registration Statement, the amount of such Securities
will not be included in any Prospectus hereunder. The amount of Securities being
registered, together with the remaining Securities registered under Registration
Statement No. 33-69132, represents the maximum amount of Securities which are
expected to be offered for sale.
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
SUBJECT TO COMPLETION, DATED JULY 16, 1996
UNUM CORPORATION
DEBT SECURITIES, PREFERRED STOCK,
COMMON STOCK AND WARRANTS
-----------------
UNUM Corporation may from time to time offer, together or separately, its
(i) debt securities (the "Debt Securities") which may be either senior debt
securities (the "Senior Debt Securities") or subordinated debt securities (the
"Subordinated Debt Securities"); (ii) shares of its preferred stock, $.10 par
value (the "Preferred Stock"); (iii) shares of its common stock, $.10 par value
(the "Common Stock"); and (iv) warrants to purchase Debt Securities, Preferred
Stock, Common Stock or other securities of the Company as shall be designated by
the Company at the time of offering (the "Warrants"), in amounts, at prices and
on terms to be determined at the time of offering. The Debt Securities,
Preferred Stock, Common Stock and Warrants are collectively called the
"Securities."
The Securities offered pursuant to this Prospectus may be issued in one or
more series or issuances and will be limited to $500,000,000 aggregate public
offering price (or its equivalent (based on the applicable exchange rate at the
time of sale) in one or more foreign currencies, currency units or composite
currencies as shall be designated by the Company). Certain specific terms of the
particular Securities in respect of which this Prospectus is being delivered are
set forth in the accompanying Prospectus Supplement (the "Prospectus
Supplement"), including, where applicable, (i) in the case of Debt Securities,
the specific title, aggregate principal amount, whether such Debt Securities are
Senior Debt Securities or Subordinated Debt Securities, maturity date, initial
public offering or purchase price, interest rate or rates (which may be fixed,
floating or adjustable) and timing of payments thereof, yield, provision for
redemption or sinking fund requirements, if any, currencies of denomination or
currencies otherwise applicable thereto, terms for any conversion or exchange
into Common Stock or other securities or property of the Company, in the case of
Subordinated Debt Securities, any other variable terms, any listing on a
securities exchange and methods of distribution; (ii) in the case of Preferred
Stock, the specific title, the aggregate amount, any dividend (including the
method of calculating payment of dividends), liquidation, redemption, voting and
other rights, any terms for any conversion or exchange into Common Stock or
other securities or property of the Company, methods of distribution and the
initial public offering or purchase price and other special terms; (iii) in the
case of Common Stock, the methods of distribution and the public offering or
purchase price; and (iv) in the case of Warrants, the securities of the Company
which are issuable upon exercise of the Warrants, the exercise period, the
methods of distribution, the initial public offering or purchase price and the
exercise price and detachability of such Warrants if issued with other
securities. All or a portion of the Debt Securities of a series may be issuable
in temporary or permanent global form. The Company's Common Stock is listed on
the New York Stock Exchange and the Pacific Stock Exchange under the trading
symbol "UNM." Any Common Stock sold pursuant to a Prospectus Supplement will be
listed on such exchanges, subject to official notice of issuance.
The Debt Securities will be unsecured. Unless otherwise specified in a
Prospectus Supplement, the Senior Debt Securities will rank equally with all
other unsecured and unsubordinated indebtedness of the Company. The Subordinated
Debt Securities will be subordinated in right of payment to all Senior
Indebtedness of the Company (as hereinafter defined).
The Prospectus Supplement may contain information concerning certain United
States Federal income tax considerations applicable to the Securities offered
therein.
The Securities may be sold by the Company directly or through agents,
underwriters or dealers, as designated from time to time or through a
combination of such methods. If agents of the Company or any dealers or
underwriters are involved in the sale of the Securities in respect of which this
Prospectus is being delivered, the names of such agents, dealers or underwriters
and any applicable commissions or discounts will be set forth in or may be
calculated from the Prospectus Supplement with respect to such Securities. See
"Plan of Distribution."
This Prospectus may not be used to consummate sales of Securities unless
accompanied by a Prospectus Supplement.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
-------------------
THE DATE OF THIS PROSPECTUS IS , 1996.
<PAGE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS IN CONNECTION WITH THE OFFER CONTAINED IN THIS PROSPECTUS AND, IF
GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY UNDERWRITERS, DEALERS OR AGENTS.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR SOLICITATION OF AN OFFER
TO BUY SECURITIES IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO
MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY
SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT
THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR
THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AT ANY TIME SUBSEQUENT TO THE
DATE HEREOF.
NORTH CAROLINA
The Commissioner of Insurance of the State of North Carolina has not
approved or disapproved this offering nor has the commissioner passed upon the
accuracy or adequacy of this Prospectus.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Reports, proxy and
information statements and other information filed by the Company can be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
the following Regional Offices of the Commission: Midwest Regional Office,
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2511 and Northeast Regional Office, 7 World Trade Center, 13th Floor, New
York, New York 10048. Copies of such material can be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549at prescribed rates. The Commission maintains a Web site
(http://www.sec.gov) that contains reports, proxy and information statements and
other information regarding registrants that file electronically with the
Commission. Reports, proxy and information statements and other information
concerning the Company may also be inspected at the offices of the New York
Stock Exchange, Inc., 20 Broad Street, New York, New York 10005 and the Pacific
Stock Exchange, 301 Pine Street, San Francisco, California 94104, on which
certain of the Company's securities are listed.
The Company has filed with the Commission a registration statement on Form
S-3 under the Securities Act of 1933, as amended (the "Securities Act"), with
respect to the Securities offered hereby (the "Registration Statement"). This
Prospectus does not contain all of the information set forth in the Registration
Statement, certain parts of which are omitted in accordance with the rules and
regulations of the Commission. Reference is made to the Registration Statement
and to the exhibits relating thereto for further information with respect to the
Company and the Securities offered hereby.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1995 (except for Items 7 and 8 of Part II and Item 14 of Part IV), Quarterly
Report on Form 10-Q for the three-month period ended March 31, 1996, and Current
Report on Form 8-K dated January 24, 1996, filed by the Company under the
Exchange Act, and the description of the Company's Common Stock and Share
Purchase Rights Plan contained in its Registration Statements filed pursuant to
Section 12 of the Exchange Act and any amendment or report filed for the purpose
of updating those descriptions, are incorporated herein by reference.
All documents filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date hereof and
prior to the termination of the offering of the Securities shall hereby be
deemed to be incorporated by reference into this Prospectus and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein or in
the accompanying Prospectus Supplement modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, on written or oral request of such person, a copy of
any or all of the foregoing documents incorporated by reference into this
Prospectus (without exhibits to such documents other than exhibits specifically
incorporated by reference into such documents). Requests for such copies should
be directed to the office of the Secretary, UNUM Corporation, 2211 Congress
Street, Portland, Maine, 04122, telephone number (207) 770-4319.
2
<PAGE>
THE COMPANY
UNUM Corporation ("the Company") is a Delaware corporation organized in 1985
as an insurance holding company. The Company and its subsidiaries ("UNUM") are
the leading providers of group long term disability insurance ("group LTD") in
the United States and the United Kingdom. UNUM is also a major provider of
employee benefits, individual disability insurance and special risk reinsurance.
UNUM also markets long term care and retirement income products. UNUM is based
in Portland, Maine and through its affiliates has offices in North America, the
United Kingdom and the Pacific Rim. The Company's principal executive offices
are located at 2211 Congress Street, Portland, Maine 04122 and its telephone
number is (207) 770-2211.
The operations of the following subsidiaries account for substantially all
of UNUM's consolidated assets and revenues: UNUM Life Insurance Company of
America ("UNUM America"), the leading provider of group disability insurance in
the nation and a provider of employee benefits, long term care and retirement
products; First UNUM Life Insurance Company (New York state only) ("First
UNUM"); Commercial Life Insurance Company, a leader in special risk insurance
and professional association insurance marketing; UNUM Limited, the leading
group disability insurance provider in the United Kingdom; Duncanson & Holt,
Inc., a leading accident and health reinsurance underwriting manager; Colonial
Life & Accident Insurance Company ("Colonial"), a leader in payroll-deducted
voluntary employee benefits offered to employees at their worksites; and UNUM
Japan Accident Insurance Company Limited.
BUSINESS SEGMENTS
UNUM reports its operations principally in four business segments:
Disability Insurance, Special Risk Insurance, Colonial Products and Retirement
Products. Corporate includes transactions that are generally non-insurance
related and interest expense on corporate borrowings.
DISABILITY INSURANCE SEGMENT. The Disability Insurance segment, which in
1995 accounted for 60.0% of UNUM's revenues and 56.8% of its income before
income taxes, includes disability products offered in North America, the United
Kingdom and Japan including: group LTD, individual disability, group short term
disability, association group disability, disability reinsurance and long term
care insurance.
Group LTD is the Disability Insurance segment's principal product. UNUM
America and First UNUM target sales of group LTD to executive, administrative
and management personnel, and other professionals. Since 1976, UNUM America and
First UNUM combined have been the United States' leading provider of group LTD
according to EMPLOYEE BENEFIT PLAN REVIEW, a recognized industry publication.
UNUM Limited targets group LTD sales to management personnel, other
professionals, and technical and skilled artisans. UNUM Limited was the leading
provider for 1995 of group LTD insurance in the United Kingdom, as reported by
Employers Re. International.
SPECIAL RISK INSURANCE SEGMENT. The Special Risk Insurance segment in 1995
accounted for 18.2% of UNUM's revenues and 15.8% of its income before income
taxes. The Special Risk Insurance segment includes group life, special risk
accident insurance, non-disability reinsurance operations, reinsurance
underwriting management operations and other special risk insurance products.
COLONIAL PRODUCTS SEGMENT. The Colonial Products segment in 1995 accounted
for 12.8% of UNUM's revenues and 23.0% of its income before income taxes. The
Colonial Products segment includes Colonial and affiliates. Colonial, the
principal subsidiary, markets a broad line of payroll-deducted, voluntary
benefits to employees at their worksites, while focusing on accident and
sickness, cancer and life products.
RETIREMENT PRODUCTS SEGMENT. The Retirement Products segment accounted for
8.7% of UNUM's revenues and 11.9% of its income before income taxes in 1995.
This segment markets and services tax-
3
<PAGE>
sheltered annuities in UNUM America and First UNUM. This segment also includes
guaranteed investment contracts, deposit administration accounts, 401(k) plans,
individual life and group medical insurance, all of which are no longer actively
marketed by UNUM.
RECENT DEVELOPMENTS
During the first quarter of 1996, UNUM America and First UNUM entered into
an agreement for the sale of their respective group tax-sheltered annuity
("TSA") businesses to The Lincoln National Life Insurance Company ("Lincoln
Life"), a part of Lincoln National Corporation, and to a new New York insurance
subsidiary of Lincoln Life. The sale, which is subject to regulatory approvals,
involves approximately 1,700 group contractholders and assets under management
of approximately $3 billion. The agreement initially contemplates the
reinsurance of these contracts under an indemnity reinsurance arrangement. These
contracts will then be reinsured pursuant to an assumption reinsurance
arrangement upon consent of the TSA contractholders and/or participants. The
purchase price (ceding commission) at closing is expected to be approximately
$70 million. It is anticipated that it will take several months to obtain the
necessary approvals and otherwise close the sale. There is no guarantee that the
sale will close.
On February 7, 1996, UNUM announced plans to merge Commercial Life Insurance
Company into UNUM America to accelerate growth of its special risk business,
increase its commitment to the association group business and to improve
operating and capital efficiencies. The merger is expected to become effective
on December 31, 1996, subject to regulatory approvals.
On December 29, 1993, UNUM filed suit in the United States District Court
for the District of Maine, seeking a federal income tax refund. The suit is
based on a claim for a deduction in certain prior tax years, for $652 million in
cash and stock distributed to policyholders in connection with the 1986
conversion of Union Mutual Life Insurance Company to a stock company. UNUM has
fully paid, and provided for in prior years' financial statements, the tax at
issue in this litigation. On May 23, 1996, the District Court issued its
decision that the distribution in question was not a deductible expenditure.
UNUM believes its claims are meritorious, and expects to appeal the decision to
the Court of Appeals for the First Circuit. The ultimate recovery, if any,
cannot be determined at this time.
INVESTMENTS
<TABLE>
<CAPTION>
DECEMBER 31, 1995 DECEMBER 31, 1994
----------------------- -----------------------
CARRYING FAIR CARRYING FAIR
AMOUNT VALUE AMOUNT VALUE
----------- ---------- ----------- ----------
(DOLLARS IN MILLIONS)
<S> <C> <C> <C> <C>
Fixed maturities:
Available for sale......................................... $ 9,135.4 $ 9,135.4 $ 1,640.6 $ 1,640.6
Held to maturity........................................... -- -- 6,227.2 6,168.6
Equity securities available for sale......................... 25.2 25.2 627.9 627.9
Mortgage loans............................................... 1,163.4 1,274.9 1,216.3 1,265.4
Real estate.................................................. 222.2 190.8
Policy loans................................................. 219.2 219.2 201.0 201.0
Other long-term investments.................................. 30.4 38.1
Short-term investments....................................... 896.7 896.7 291.9 291.9
----------- -----------
Total investments...................................... $ 11,692.5 $ 10,433.8
----------- -----------
----------- -----------
</TABLE>
UNUM's investment portfolio is concentrated in investment grade bonds. UNUM
evaluates total expected return after consideration of associated expenses and
losses, within criteria established for each product line. Product line
investment strategies are developed to complement business risks by meeting the
liquidity and solvency requirements of each product. UNUM purchases assets with
maturities, expected cash flows and prepayment conditions that are consistent
with these strategies. The
4
<PAGE>
nature and quality of the types of investments comply with policies established
by management, which are more stringent overall than the statutes and
regulations imposed by the jurisdictions in which UNUM's insurance subsidiaries
are licensed. UNUM's investments are reported in the consolidated financial
statements at net realizable value or net of any applicable allowances for
probable losses.
During the second quarter of 1995, UNUM sold virtually all of the common
stock portfolio of its United States subsidiaries, primarily due to
consideration of statutory capital requirements associated with investment in
common stocks and to increase future investment income. UNUM has reinvested the
proceeds from the sale of the common stock portfolio primarily in investment
grade fixed income assets. Dependent on capital considerations and market
conditions, UNUM may invest in equity securities in the future.
In November 1995, the FASB issued "A Guide to Implementation of Statement
115 on Accounting for Certain Investments in Debt and Equity Securities," which
provided a one-time opportunity to reassess the appropriateness of the
classifications of securities described in FAS 115, and to reclassify fixed
maturities from the held to maturity category without calling into question the
intent to hold other debt securities to maturity in the future. On December 31,
1995, UNUM reassessed its fixed maturity portfolio and, as allowed under the
implementation guidance, reclassified fixed maturities with an amortized cost of
$6,082.8 million and a related net unrealized gain of $393.0 million from the
held to maturity category to available for sale.
At December 31, 1995, the fixed maturity portfolio included $139.4 million
of below investment grade bonds (below "Baa") recorded at fair value, which
represented 1.5% of the fixed maturity portfolio, and had an associated
amortized cost of $133.8 million. At December 31, 1994, the carrying value of
below investment grade bonds included in the fixed maturity portfolio was $193.8
million, which represented 2.5% of the fixed maturity portfolio, and had an
associated market value of $193.4 million. The percentage of mortgage loans
delinquent 60 days or more on a contract delinquency basis was 0.2% and 1.8% at
December 31, 1995, and 1994, respectively.
5
<PAGE>
SELECTED CONSOLIDATED FINANCIAL DATA OF THE COMPANY
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------------------------------------------
1995 1994 1993 1992 1991
---------- ---------- ---------- ---------- ----------
(DOLLARS IN MILLIONS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA
Revenues
Premiums.................................................. $ 3,018.2 $ 2,721.3 $ 2,474.1 $ 2,142.4 $ 1,938.9
Net investment income (a)................................. 1,031.4 815.8 839.8 850.7 811.6
Fees and other income..................................... 73.3 75.5 83.1 55.4 34.0
---------- ---------- ---------- ---------- ----------
Total revenues.............................................. 4,122.9 3,612.6 3,397.0 3,048.5 2,784.5
Benefits and expenses
Benefits to policyholders................................. 2,493.0 2,239.0 1,775.7 1,532.6 1,387.1
Interest credited......................................... 227.4 242.7 281.0 328.4 357.7
Operating expenses........................................ 728.2 713.0 675.6 590.9 554.8
Commissions............................................... 369.9 355.9 326.8 298.9 258.8
Increase in deferred policy acquisition costs............. (114.7) (155.3) (135.1) (111.7) (104.8)
Interest expense.......................................... 37.2 18.7 12.7 10.9 11.3
---------- ---------- ---------- ---------- ----------
Total benefits and expenses............................. 3,741.0 3,414.0 2,936.7 2,650.0 2,464.9
---------- ---------- ---------- ---------- ----------
Income before income taxes and cumulative effects of
accounting changes......................................... 381.9 198.6 460.3 398.5 319.6
Income taxes................................................ 100.8 43.9 148.3 107.3 74.3
---------- ---------- ---------- ---------- ----------
Income before cumulative effects of accounting changes...... 281.1 154.7 312.0 291.2 245.3
Cumulative effects of accounting changes.................... -- -- (12.1) -- --
---------- ---------- ---------- ---------- ----------
Net Income.............................................. $ 281.1 $ 154.7 $ 299.9 $ 291.2 $ 245.3
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
BALANCE SHEET DATA
(at end of period)
Assets...................................................... $ 14,787.8 $ 13,127.2 $ 12,437.3 $ 11,959.8 $ 11,310.9
Short-term debt............................................. $ 126.5 $ 246.6 $ 110.0 $ 122.7 $ 150.1
Long-term debt.............................................. $ 457.3 $ 182.1 $ 128.6 $ 77.2 $ 51.5
Stockholders' equity........................................ $ 2,302.9 $ 1,915.4 $ 2,102.7 $ 2,010.9 $ 1,755.5
OTHER DATA
Earnings per share.......................................... $ 3.87 $ 2.09 $ 3.81(b) $ 3.71 $ 3.15
Dividends paid per share.................................... $ 1.035 $ 0.92 $ 0.765 $ 0.625 $ 0.49
Book value per share........................................ $ 31.54 $ 26.45 $ 27.67 $ 25.44 $ 22.46
Number of shares (millions):
Shares outstanding........................................ 73.0 72.4 76.0 79.1 78.2
Weighted average shares outstanding....................... 72.7 74.2 78.8 78.5 77.8
Ratio of earnings to fixed charges (c)...................... 9.0 7.7 20.0 19.1 14.0
</TABLE>
- ----------
(a) Net investment income is comprised of investment income (net of expenses)
and net realized investment gains.
(b) Earnings per share before cumulative effects of accounting changes was
$3.96. Effective January 1, 1993, the Company adopted Financial Accounting
Standard No. 106, "Employers' Accounting for Postretirement Benefits Other
than Pensions," which decreased net income by $32.1 million, or $0.40 per
share, and Financial Accounting Standard No. 109, "Accounting for Income
Taxes," which increased net income by $20.0 million, or $0.25 per share.
(c) For purposes of computing the ratio of earnings to fixed charges, earnings
as adjusted consist of income from continuing operations before income taxes
plus fixed charges. Fixed charges consist of interest expense and the
estimated interest portion of rent expense.
6
<PAGE>
SELECTED CONSOLIDATED SEGMENT INCOME STATEMENT DATA OF THE COMPANY
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
---------------------------------------------------
1995 1994 1993 1992 1991
-------- -------- -------- -------- --------
(DOLLARS IN MILLIONS)
<S> <C> <C> <C> <C> <C>
Premiums and other income:
Disability Insurance Segment.............................. $1,879.9 $1,716.2 $1,547.9 $1,339.8 $1,214.6
Special Risk Insurance Segment............................ 702.3 607.1 559.4 432.8 368.5
Colonial Products Segment................................. 475.1 441.3 407.4 371.9 325.4
Retirement Products Segment 34.1 31.4 42.5 52.5 64.4
Corporate................................................. 0.1 0.8 -- 0.8 --
-------- -------- -------- -------- --------
Total premiums and other income......................... 3,091.5 2,796.8 2,557.2 2,197.8 1,972.9
-------- -------- -------- -------- --------
Net investment income: (a)
Disability Insurance Segment.............................. 592.9 400.3 369.8 370.5 333.8
Special Risk Insurance Segment............................ 48.4 40.7 34.8 32.2 26.5
Colonial Products Segment................................. 52.2 32.6 41.4 35.4 38.5
Retirement Products Segment............................... 323.7 338.0 387.6 408.7 411.3
Corporate................................................. 14.2 4.2 6.2 3.9 1.5
-------- -------- -------- -------- --------
Total net investment income............................. 1,031.4 815.8 839.8 850.7 811.6
-------- -------- -------- -------- --------
Total revenues.......................................... 4,122.9 3,612.6 3,397.0 3,048.5 2,784.5
-------- -------- -------- -------- --------
Benefits and expenses:
Disability Insurance Segment.............................. 2,255.8 2,060.3 1,603.6 1,446.6 1,306.4
Special Risk Insurance Segment............................ 690.4 581.9 555.3 418.7 355.2
Colonial Products Segment................................. 439.6 411.2 378.4 346.8 306.4
Retirement Products Segment 312.3 327.4 375.8 427.5 484.4
Corporate................................................. 42.9 33.2 23.6 10.4 12.5
-------- -------- -------- -------- --------
Total benefits and expenses............................. 3,741.0 3,414.0 2,936.7 2,650.0 2,464.9
-------- -------- -------- -------- --------
Income (loss) before income taxes and cumulative effects of
accounting changes:
Disability Insurance Segment.............................. 217.0 56.2 314.1 263.7 242.0
Special Risk Insurance Segment............................ 60.3 65.9 38.9 46.3 39.8
Colonial Products Segment................................. 87.7 62.7 70.4 60.5 57.5
Retirement Products Segment............................... 45.5 42.0 54.3 33.7 (8.7)
Corporate................................................. (28.6) (28.2) (17.4) (5.7) (11.0)
-------- -------- -------- -------- --------
Total income before income taxes and cumulative effects
of accounting changes.................................. 381.9 198.6 460.3 398.5 319.6
-------- -------- -------- -------- --------
Income taxes................................................ 100.8 43.9 148.3 107.3 74.3
-------- -------- -------- -------- --------
Cumulative effects of accounting changes.................... -- -- (12.1)(b) -- --
-------- -------- -------- -------- --------
Net income.............................................. $ 281.1 $ 154.7 $ 299.9 $ 291.2 $ 245.3
-------- -------- -------- -------- --------
-------- -------- -------- -------- --------
</TABLE>
- ----------
(a) Net investment income is comprised of investment income (net of expenses)
and net realized investment gains.
(b) Effective January 1, 1993, the Company adopted Financial Accounting Standard
No. 106, "Employers' Accounting for Postretirement Benefits Other than
Pensions," which decreased net income by $32.1 million, or $0.40 per share,
and Financial Accounting Standard No. 109, "Accounting for Income Taxes,"
which increased net income by $20.0 million, or $0.25 per share.
7
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USE OF PROCEEDS
Except as set forth in a Prospectus Supplement, the Company intends to use
the net proceeds from the sale of the Securities for general corporate purposes,
including working capital, capital expenditures, investment in subsidiaries,
refinancing of debt, possible future business acquisitions and for the
repurchase of its Common Stock. The Company does not have any present plans, and
is not engaged in any negotiations, for the use of any such proceeds, or the
issuance of Common Stock, in any future acquisition. Any proposal to use
proceeds from any offering of Securities in connection with an acquisition will
be disclosed in the Prospectus Supplement relating to such offering.
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and provisions of
the Debt Securities to which any Prospectus Supplement may relate. The
particular terms of the Debt Securities offered by any Prospectus Supplement and
the extent, if any, to which such general provisions may not apply to the Debt
Securities so offered will be described in the Prospectus Supplement relating to
such Debt Securities.
The Senior Debt Securities are to be issued under an Indenture, dated as of
September 15, 1990 (the "Senior Indenture"), between UNUM Corporation (for
purposes of this "Description of Debt Securities," exclusive of its
subsidiaries, the "Company") and The Chase Manhattan Bank, N.A., as trustee. The
Subordinated Debt Securities are to be issued under a separate Indenture dated
as of May 1, 1995 (the "Subordinated Indenture") between the Company and Mellon
Bank, N.A., as trustee. The Senior Indenture and the Subordinated Indenture are
sometimes referred to collectively as the "Indentures." Copies of the Senior
Indenture and the Subordinated Indenture are filed or incorporated by reference
as exhibits to the Registration Statement of which this Prospectus is a part.
The Chase Manhattan Bank, N.A. and Mellon Bank, N.A. are hereinafter referred to
as the "Trustee." The following summaries of certain provisions of the Senior
Debt Securities, the Subordinated Debt Securities and the Indentures do not
purport to be complete and are subject to, and are qualified in their entirety
by reference to, all the provisions of the Indentures applicable to a particular
series of Debt Securities, including the definitions therein of certain terms.
Wherever particular Sections, Articles or defined terms of the Indentures are
referred to, such Sections, Articles or defined terms are incorporated herein by
reference. Article and Section references used herein are references to the
applicable Indenture. Except as otherwise indicated, the terms of the Senior
Indenture and the Subordinated Indenture are identical. Capitalized terms not
otherwise defined herein shall have the meaning given in the Indentures.
GENERAL
The Indentures do not limit the aggregate principal amount of Debt
Securities which may be issued thereunder and each Indenture provides that Debt
Securities may be issued thereunder from time to time in one or more series. The
Debt Securities will be unsecured. Unless otherwise specified in the Prospectus
Supplement, the Senior Debt Securities when issued will be unsubordinated
obligations of the Company and will rank equally and ratably with all other
unsecured and unsubordinated indebtedness of the Company. The Subordinated Debt
Securities when issued will be subordinated in right of payment to the prior
payment in full of all Senior Indebtedness (as defined below) of the Company, as
described under "Subordination of Subordinated Debt Securities" and in the
Prospectus Supplement applicable to an offering of Subordinated Debt Securities.
Since the Company is a holding company, the right of the Company, and hence the
right of creditors of the Company (including the Holders of Debt Securities), to
participate in any distribution of the assets of any subsidiary upon its
liquidation or reorganization or otherwise is necessarily subject to the prior
claims of creditors of the subsidiary, except to the extent that claims of the
Company itself as a creditor of the subsidiary may be recognized.
Reference is made to the Prospectus Supplement relating to the particular
Debt Securities offered thereby (the "Offered Debt Securities") which sets forth
whether the Offered Debt Securities shall be
8
<PAGE>
Senior Debt Securities or Subordinated Debt Securities, and further sets forth
the following terms, where applicable, of the Offered Debt Securities: (1) the
title of the Offered Debt Securities; (2) any limit on their aggregate principal
amount; (3) whether they are to be issuable in temporary or permanent global
form; (4) the price(s) (expressed as a percentage of the aggregate principal
amount thereof) at which they will be issued; (5) the date(s) on which they will
mature; (6) the rate(s) (which may be fixed, floating or adjustable) at which
they will bear interest, if any, and the date from which such interest will
accrue; (7) the dates on which such interest will be payable and the Regular
Record Dates for such Interest Payment Dates; (8) any mandatory or optional
sinking fund or analogous provisions; (9) any index or formula used to determine
the amount of payments of principal of and premium, if any, and interest; (10)
the date, if any, after which and the price(s) at which the Company may redeem
them at its option; (11) the currency or currencies (including composite
currencies) of payment of principal of and premium, if any, and interest thereon
if other than U.S. dollars (the "Specified Currency"); (12) the terms and
conditions, if any, pursuant to which the Subordinated Debt Securities are
convertible into or exchangeable for Common Stock or other securities or
property of the Company; (13) the Person to whom any interest on the Offered
Debt Securities will be payable, if other than the Person in whose name such
Offered Debt Securities are registered on any Regular Record Date; (14) the
place or places where principal of (and premium, if any) and interest, if any,
on Offered Debt Securities will be payable; (15) if other than denominations of
$1,000 and any integral multiple thereof, the denominations in which the Offered
Debt Securities will be issuable; (16) any event or events of default applicable
with respect to the Offered Debt Securities in addition to those provided in the
applicable Indenture; (17) any other covenant or warranty included for the
benefit of the Offered Debt Securities in addition to (and not inconsistent
with) those included in the applicable Indenture for the benefit of Debt
Securities of all series, or any other covenant or warranty included for the
benefit of the Offered Debt Securities in lieu of any covenant or warranty
included in the Indentures for the benefit of Debt Securities of all series or
any provision that any covenant or warranty included in the applicable Indenture
for the benefit of Debt Securities of all series shall not be for the benefit of
the Offered Debt Securities, or any combination of such covenants, warranties or
provisions; and (18) any other terms. (Section 301) Debt Securities may also be
issued under the Indentures upon the exercise of Warrants. See "Description of
Warrants."
The Indentures do not contain any provisions that afford Holders of the Debt
Securities protection in the event of a highly leveraged or similar transaction
involving the Company.
Offered Debt Securities may be issued at a substantial discount to their
principal amount (the "Original Issue Discount Securities"). Certain United
States Federal income tax and other considerations applicable to Original Issue
Discount Securities, and to Offered Debt Securities that are denominated in
other than U.S. dollars, will be described in the applicable Prospectus
Supplement.
The Indentures provide the Company with the ability, in addition to the
ability to issue Offered Debt Securities with terms different from those of Debt
Securities previously issued, to "reopen" a previous issue of a series of Debt
Securities and issue additional Offered Debt Securities of such series. (Section
301)
DENOMINATIONS, REGISTRATION AND TRANSFER
Unless otherwise provided in an applicable Prospectus Supplement with
respect to a series of Offered Debt Securities, Offered Debt Securities
denominated in U.S. dollars will be issued only in denominations of $1,000 or
any integral multiple thereof without coupons. The Prospectus Supplement
relating to a series of Offered Debt Securities denominated in a foreign or
composite currency will specify the denominations thereof. (Section 302) Offered
Debt Securities of any series will be exchangeable for other Offered Debt
Securities of the same series containing identical terms and provisions and of a
like aggregate principal amount and containing identical terms and provisions of
different authorized denominations. (Section 305) Offered Debt Securities may be
issuable under the Indentures in temporary or permanent global form. (Section
202) See "Global Securities."
9
<PAGE>
Unless otherwise indicated in an applicable Prospectus Supplement, the
principal office of the Trustee in The City of New York will be designated as
the Company's Paying Agent for payments with respect to Debt Securities. Any
other Paying Agents in the United States initially designated by the Company for
the Offered Debt Securities will be named in the related Prospectus Supplement.
The Company may at any time designate additional Paying Agents or rescind the
designation of any Paying Agents or approve a change in the office through which
any Paying Agent acts, except that the Company will be required to maintain a
Paying Agent in each Place of Payment for such series. All monies paid by the
Company to a Paying Agent for the payment of principal of and premium, if any,
and interest, if any, on any Debt Security which remains unclaimed at the end of
two years after such principal, premium or interest shall have become due and
payable will be repaid to the Company, and the Holder of such Offered Debt
Security will thereafter look only to the Company for payment thereof. (Section
1003)
GLOBAL SECURITIES
If any Offered Debt Securities are issuable in temporary or permanent global
form, the applicable Prospectus Supplement will describe the circumstances, if
any, under which beneficial owners of interests in any such permanent global
Debt Security may exchange such interests for definitive Offered Debt Securities
of such series and of like tenor and principal amount in any authorized form and
denomination. Principal of and any premium and interest on a permanent global
Debt Security will be payable in the manner described in the applicable
Prospectus Supplement.
CERTAIN COVENANTS IN THE INDENTURES
LIMITATIONS ON SALES OF RESTRICTED SUBSIDIARIES' CAPITAL STOCK. The Company
will not sell, transfer or otherwise dispose of any shares of capital stock of a
Restricted Subsidiary (other than directors' qualifying shares or sales to
Restricted Subsidiaries), and it will not permit any Restricted Subsidiary to
sell, transfer or otherwise dispose of any shares of capital stock of any other
Restricted Subsidiary (other than for directors' qualifying shares or sales or
other transfers to the Company or to a Restricted Subsidiary), unless the entire
capital stock of such Restricted Subsidiary at the time owned by the Company and
its Restricted Subsidiaries shall be disposed of at the same time for a
consideration consisting of cash or other property, which, in the opinion of the
Board of Directors of the Company, is at least equal to the fair value thereof.
(Section 1006)
For purposes of the Indentures, "Restricted Subsidiary" means each of UNUM
Life Insurance Company of America, First UNUM Life Insurance Company, and
Colonial Companies, Inc., as well as any successor to all or a principal part of
the business of any such subsidiary, any subsidiary which owns or holds capital
stock of any such subsidiary and any other subsidiary which the Company's Board
of Directors designates as a Restricted Subsidiary. (Section 101) The Restricted
Subsidiaries accounted for approximately 90% of the consolidated revenues of the
Company during 1995 and approximately 91% of the consolidated assets of the
Company at December 31, 1995.
LIMITATIONS ON LIENS ON RESTRICTED SUBSIDIARIES' CAPITAL STOCK.
The Company will not, and it will not permit any Restricted Subsidiary at
any time directly or indirectly to, create, assume, incur, or permit to exist
any indebtedness secured by a pledge, lien, or other encumbrance on the capital
stock of any Restricted Subsidiary without making effective provision whereby
the Debt Securities then outstanding (and, if the Company so elects, any other
indebtedness ranking on a parity with the Debt Securities) shall be equally and
ratably secured with such secured indebtedness so long as such other
indebtedness shall be secured. (Section 1007)
CONVERSION RIGHTS
The terms on which Subordinated Debt Securities of any series are
convertible into or exchangeable for Common Stock or other securities or
property of the Company will be set forth in the Prospectus Supplement relating
thereto. Such terms shall include provisions as to whether conversion or
exchange is mandatory, at the option of the Holder or at the option of the
Company, and may include provisions
10
<PAGE>
pursuant to which the number of shares of Common Stock or other securities of
the Company to be received by the Holders of Subordinated Debt Securities would
be calculated according to the market price of Common Stock or other securities
of the Company as of a time stated in the Prospectus Supplement. The conversion
price of any Subordinated Debt Securities of any series that is convertible into
Common Stock of the Company may be adjusted for any stock dividends, stock
splits, reclassification, combinations or similar transactions, as set forth in
the applicable Prospectus Supplement. (Article Fourteen).
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
Unless otherwise indicated in the Prospectus Supplement, the following
provisions will apply to the Subordinated Debt Securities.
The Subordinated Debt Securities will, to the extent set forth in the
Subordinated Indenture, be subordinate in right of payment to the prior payment
in full of all Senior Indebtedness. Upon any payment or distribution of assets
to creditors upon any liquidation, dissolution, winding up, reorganization,
assignment for the benefit of creditors, marshalling of assets or any
bankruptcy, insolvency, debt restructuring or similar proceedings in connection
with any insolvency or bankruptcy proceeding of the Company, the Holders of
Senior Indebtedness will first be entitled to receive payment in full of
principal of (and premium, if any) and interest, if any, on such Senior
Indebtedness before the Holders of the Subordinated Debt Securities will be
entitled to receive or retain any payment in respect of the principal of (and
premium, if any) or interest, if any, on the Subordinated Debt Securities.
(Section 1302)
By reason of such subordination, in the event of liquidation or insolvency,
creditors of the Company may recover less, ratably, than Holders of Senior
Indebtedness and may recover more, ratably, than the Holders of the Subordinated
Debt Securities.
In the event of the acceleration of the maturity of any Subordinated Debt
Securities, the Holders of all Senior Indebtedness outstanding at the time of
such acceleration will first be entitled to receive payment in full of all
amounts due thereon before the Holders of the Subordinated Debt Securities will
be entitled to receive any payment upon the principal of (or premium, if any) or
interest, if any, on the Subordinated Debt Securities. (Section 1303)
No payments on account of principal (or premium, if any) or interest, if
any, in respect of the Subordinated Debt Securities may be made if there shall
have occurred and be continuing a default in any payment with respect to Senior
Indebtedness, or an event of default with respect to any Senior Indebtedness
resulting in the acceleration of the maturity thereof, or if any judicial
proceeding shall be pending with respect to any such default. (Section 1304) For
purposes of the subordination provisions, the payment, issuance and delivery of
cash, property or securities (other than stock and certain subordinated
securities of the Company) upon conversion of a Subordinated Debt Security will
be deemed to constitute payment on account of the principal of such Subordinated
Debt Security.
The Subordinated Indenture does not limit or prohibit the incurrence of
additional Senior Indebtedness, which may include indebtedness that is senior to
the Subordinated Debt Securities, but subordinate to other obligations of the
Company. The Senior Debt Securities constitute Senior Indebtedness under the
Subordinated Indenture.
"Senior Indebtedness" is defined to include all amounts due on and
obligations in connection with any of the following, whether outstanding at the
date of execution of the Subordinated Indenture or thereafter incurred or
created:
(a) indebtedness, obligations and other liabilities (contingent or
otherwise) of the Company for money borrowed, or evidenced by bonds, debentures,
notes or similar instruments;
11
<PAGE>
(b) reimbursement obligations and other liabilities (contingent or
otherwise) of the Company with respect to letters of credit, bankers'
acceptances issued for the account of the Company or with respect to interest
rate protection agreements or currency exchange or purchase agreements;
(c) obligations and liabilities (contingent or otherwise) in respect of
leases by the Company as lessee which, in conformity with generally accepted
accounting principles, are accounted for as capitalized lease obligations on the
balance sheet of the Company;
(d) all direct or indirect guarantees or similar agreements in respect of,
and obligations or liabilities (contingent or otherwise) to purchase or
otherwise acquire or otherwise to assure a creditor against loss of the Company
in respect of, indebtedness, obligations or liabilities of another Person
described in clauses (a) through (c);
(e) any indebtedness described in clauses (a) through (d) secured by any
mortgage, pledge, lien or other encumbrance existing on property which is owned
or held by the Company, regardless of whether the indebtedness secured thereby
shall have been assumed by the Company; and
(f) any and all deferrals, renewals, extensions and refundings of, or
amendments, modifications or supplements to, any indebtedness, obligation or
liability of the kind described in clauses (a) through (e); unless in any case
in the instrument creating or evidencing such indebtedness, obligation,
liability, guaranty, assumption, deferral, renewal, extension or refunding, it
is provided that such indebtedness, obligation, liability, guaranty, assumption,
deferral, renewal, extension or refunding involved is not senior in right of
payment to the Subordinated Debt Securities or that such indebtedness is PARI
PASSU with or junior to the Subordinated Debt Securities. (Section 101)
The Prospectus Supplement may further describe the provisions, if any,
applicable to the subordination of the Subordinated Debt Securities of a
particular series.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company, without the consent of any Holders of Outstanding Debt
Securities, may consolidate or merge with or into any Person, or transfer or
lease its assets substantially as an entirety to any Person, or may acquire or
lease the assets of any Person, provided that: (a) the successor formed by such
consolidation or into which the Company is merged or which acquires or leases
the assets of the Company substantially as an entirety is organized under the
laws of any United States jurisdiction and assumes the Company's obligations on
the Debt Securities and under the applicable Indenture; (b) after giving effect
to the transaction, no Event of Default (and no event which, after notice or
lapse of time or both, would become an Event of Default) shall have happened and
be continuing; and (c) certain other conditions are met. (Article Eight)
EVENTS OF DEFAULT
Under the Indentures, the following will be Events of Default with respect
to Debt Securities of a particular series: (a) the Company defaults in the
payment of interest on any Debt Security of that series when due and payable and
the Default continues for a period of 30 days; (b) the Company defaults in the
payment of any principal of and premium, if any, on any Debt Security of that
series when due and payable at maturity, upon redemption or otherwise, or in the
deposit of any sinking fund payment when due by the terms of a Debt Security of
that series; (c) the Company fails to comply with or perform any of its other
agreements, covenants or warranties in the Debt Securities of that series or the
Indenture in respect of Debt Securities of that series and the Default continues
for 60 days after written notice as provided in the applicable Indenture; (d)
there shall be a default by the Company or any Restricted Subsidiary under any
(i) debt for money borrowed (including Debt Securities of any series other than
that series), (ii) mortgage, indenture or other instrument under which there may
be issued or may be secured or evidenced any indebtedness for money borrowed,
(iii) guarantee of payment for money borrowed or (iv) debt evidenced by bonds,
debentures, notes or other similar instruments (excluding trade accounts payable
or accrued liabilities arising in the normal course of business which are not
overdue by more
12
<PAGE>
than 90 days or which are being contested in good faith) and such default shall
result in such indebtedness becoming due prior to its stated maturity; PROVIDED,
HOWEVER, a default shall exist under this clause (d) only if all such defaults
relate to such indebtedness or such guarantees with an aggregate principal
amount in excess of $5,000,000, the acceleration of which has not been rescinded
or annulled within 10 days after written notice as provided in the applicable
Indenture; (e) certain events of bankruptcy, insolvency or reorganization of the
Company or any Restricted Subsidiary; and (f) any other Event of Default
provided with respect to Debt Securities of that series. (Section 501) The
applicable Trustee or the Holders of at least 25% in principal amount of the
Outstanding Debt Securities of that series (each series acting as a separate
class) may declare all unpaid principal of and accrued interest (or such lesser
amount as may be provided for in the Debt Securities of that series) on all then
Outstanding Debt Securities of that series to be due and payable immediately if
an Event of Default (other than one in (e) above) with respect to Debt
Securities of such series shall occur and be continuing at the time of
declaration. If an Event of Default as specified in (e) above occurs, all unpaid
principal and accrued interest (or such lesser amount as may be provided for in
the Debt Securities of that series) shall IPSO FACTO become and be immediately
due and payable without any other declaration or act on the part of the Trustee
or any Holder. (Section 502)
At any time after a declaration of acceleration has been made with respect
to Debt Securities of any series, the Holders of a majority in principal amount
of the Outstanding Debt Securities of that series may rescind any declaration of
acceleration with respect to the Debt Securities of that series and its
consequences, (a) if the rescission would not conflict with any judgment or
decree; (b) if all existing Events of Defaults with respect to Debt Securities
of that series have been cured or waived except non-payment of principal or
interest on Debt Securities of that series that has become due solely because of
the acceleration; and (c) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed therefore in such
Debt Securities has been paid. (Section 502) Any Event of Default with respect
to Debt Securities of any series may be waived by the Holders of a majority in
principal amount of the Outstanding Debt Securities of that series, except in a
case of failure to pay principal or premium, if any, or interest on, or deposit
of any sinking fund payment with respect to, any Debt Security of that series
for which payment or deposit had not been subsequently made or in respect of a
covenant or provision which cannot be modified or amended without the consent of
the Holder of each Outstanding Debt Security of such series affected. (Section
504)
If any event which is, or after notice or lapse of time or both would become
an Event of Default (a "Default") occurs with respect to Debt Securities of any
series and it is known to the applicable Trustee, the Trustee shall mail to
Holders of Debt Securities of that series a notice of Default within 90 days
after it occurs unless such Default shall have been cured or waived, PROVIDED
that except in the case of a Default in the payment of the principal of or
premium, if any, or interest on, any Debt Security of any series or in the
making of any sinking fund payment payable with respect to Debt Securities of
any series, the Trustee may withhold the notice if and so long as the board of
directors, the executive committee or a trust committee of directors or
Responsible Officers of the Trustee in good faith determines that withholding
the notice is in the interests of Holders of Debt Securities of that series and
PROVIDED, FURTHER, that in the case of any Default of the character specified in
clause (c) under "Events of Default" with respect to Debt Securities of any
series, no notice to Holders shall be given until at least 30 days after the
occurrence thereof. (Section 602)
Reference is made to the Prospectus Supplement relating to any series of
Debt Securities which are Original Issue Discount Securities for the particular
provisions relating to the principal amount of such Original Issue Discount
Securities due upon the occurrence of any Event of Default and the continuation
thereof.
The Holders of a majority in principal amount of the Outstanding Debt
Securities of a series may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee with respect to Debt Securities of such series,
13
<PAGE>
PROVIDED that the Trustee may refuse to follow any directions that conflict with
any law or the Indenture, are unduly prejudicial to the rights of other Holders
of that series, or would involve the Trustee in personal liability. (Section
505)
In case an Event of Default shall occur and be continuing, the Trustee shall
exercise such of its rights and powers under the applicable Indenture and use
the same degree of care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of his own affairs.
(Section 601) Before proceeding to exercise any right or power under the
applicable Indenture at the direction of such Holders, the Trustee will be
entitled to receive from such Holders security or indemnity satisfactory to it
against the costs, expenses and liabilities which might be incurred by it in
complying with any such direction. (Section 603)
MODIFICATION AND WAIVER
With certain exceptions, modification or amendment of the Indentures or the
rights of Holders of the Debt Securities of any series may be effected by the
Company and the Trustee with the consent of the Holders of at least 66 2/3% in
principal amount of the Outstanding Debt Securities of each series affected
thereby, PROVIDED that no such modification or amendment may, without the
written consent of the Holder of each Outstanding Debt Security affected
thereby, (a) change the Stated Maturity of the principal of, or any installment
of principal of, or interest on, any Debt Security; (b) reduce the principal
amount of, or the interest on, any Debt Security or any premium payable upon the
redemption thereof or reduce the amount of principal of an Original Issue
Discount Security which could be declared due and payable upon an acceleration;
(c) change the Place of Payment or coin or currency of any payment of principal,
any premium or interest on any Debt Security; (d) impair the right to institute
suit for the enforcement of any payment on or with respect to any Debt Security;
(e) reduce the percentage in principal amount of the Outstanding Debt Securities
of any series, the consent of whose Holders is required to approve any
supplemental indenture, to waive compliance with certain provisions of the
applicable Indenture or certain defaults thereunder and their consequences, or
to reduce quorum or voting requirements applicable to meetings of Holders; (f)
in the case of Subordinated Debt Securities, adversely change the right to
convert or exchange, including decreasing the conversion rate or increasing the
conversion price of such Subordinated Debt Securities; (g) in the case of the
Subordinated Indenture, modify the subordination provisions in a manner adverse
to the Holders of any Subordinated Debt Securities; or (h) modify the foregoing
requirements in (a) through (g) above, requiring the consent of each Holder of
each Outstanding Debt Security affected thereby, or the percentage of such
Holders required to waive past defaults, or the percentage of such Holders that
may rescind an acceleration, except to increase any such percentage, and except
to provide that other provisions of the Indentures cannot be modified or waived
without the consent of the Holder of each Outstanding Debt Security affected
thereby. (Section 902) Except with respect to certain fundamental provisions,
the Holders of at least a majority in principal amount of Outstanding Debt
Securities of any series may, with respect to such series, waive past defaults
under the Indentures and waive compliance by the Company with certain provisions
of the Indentures. (Section 513)
SATISFACTION AND DISCHARGE OF INDENTURES
The Indentures generally provide that the Company may terminate certain of
its obligations under the Debt Securities of any series and under the Indentures
(with respect to such series) if (i) all the Debt Securities of such series
previously authenticated and delivered (other than lost, destroyed or stolen
Debt Securities that have been replaced or paid or for whose payment money has
been deposited in trust) have been delivered to the Trustee for cancellation and
the Company has paid all sums payable by it thereunder, (ii) such Debt
Securities of such series have matured or will mature within one year or all of
them are to be called for redemption within one year under arrangements
satisfactory to the Trustee for giving the notice of redemption and the Company
irrevocably deposits with the Trustee money or U.S. Government Obligations
sufficient to pay principal of, premium, if any, and interest on the Outstanding
Debt Securities of such series that are due or will become due upon redemption
or maturity, as the case
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may be, and to pay all other sums payable by it thereunder or (iii) upon
compliance with certain conditions specified in the Indentures, 123 days after
the Company makes the deposit with the Trustee of money or U.S. Government
Obligations specified in clause (ii). In such case, Holders of the Debt
Securities must look to the deposited money for payment. (Section 401)
The Indentures further provide that if the Company has made the election
provided by clause (iii) above, it may elect either (a) to defease and be
discharged from any and all obligations with respect to the Debt Securities of
such series, except for the obligations to register the transfer or exchange of
such Debt Securities, to replace temporary or mutilated, destroyed, lost or
stolen Debt Securities, to maintain an office or agency in respect of the Debt
Securities, and to hold moneys for payment in trust ("legal defeasance") or (b)
to be released from its obligations with respect to the Debt Securities of such
series under the covenant default (except with respect to the covenant to pay
principal and interest) and cross-acceleration provisions under "Events of
Default" and from the restrictions described under certain covenants in the
Indentures, including "Limitations on Sales of Restricted Subsidiaries' Capital
Stock" and "Limitations on Liens on Restricted Subsidiaries' Capital Stock,"
and, in the case of Subordinated Debt Securities, the provisions described under
"Subordination of Subordinated Debt Securities" ("covenant defeasance"). As a
condition to legal defeasance or covenant defeasance, the Company must deliver
to the Trustee an opinion of counsel (as specified in the Indentures) to the
effect that the Holders of the Debt Securities of such series will not recognize
income, gain or loss for United States Federal income tax purposes as a result
of such legal defeasance or covenant defeasance and will be subject to United
States Federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such legal defeasance or covenant
defeasance had not occurred. In the case of legal defeasance under clause (a) or
covenant defeasance under clause (b) above, a ruling of the Internal Revenue
Service may be delivered in lieu of such opinion. (Section 401)
Under current United States Federal income tax law, legal defeasance would
likely be treated as a taxable exchange of such Debt Securities for interests in
the defeasance trust. As a consequence, a Holder would recognize gain or loss
equal to the difference between the Holder's tax basis for such Debt Securities
and the value of the Holder's interest in the defeasance trust, and thereafter
would be required to include in income its share of the income, gain and loss of
the defeasance trust. Under current Federal income tax law, covenant defeasance
would likely not be treated as a taxable exchange of such Debt Securities.
Purchasers of such Debt Securities should consult their tax advisors with
respect to the more particular tax consequences to them of such legal defeasance
and covenant defeasance, including the applicability and effect of United States
Federal income and other tax law.
The Company may exercise its legal defeasance option with respect to the
Debt Securities of such series, notwithstanding its prior exercise of its
covenant defeasance option. If the Company exercises its legal defeasance
option, payment of such Debt Securities may not be accelerated because of an
Event of Default. If the Company exercises its covenant defeasance option,
payment of such Debt Securities may not be accelerated because of the covenant
default (except with respect to the covenant to pay principal and interest) and
cross-acceleration provisions or certain of the covenants, including those noted
under clause (b) above. However, if such an acceleration were to occur because
of other defaults, the realizable value at the acceleration date of the money
and U.S. Government Obligations in the defeasance trust could be less than the
principal and interest then due on such Debt Securities, because the required
deposit in the defeasance trust is based upon scheduled cash flows rather than
market value, which will vary depending upon interest rates and other factors.
(Section 401)
The term "U.S. Government Obligations" is defined to mean direct obligations
of the United States for the payment of which its full faith and credit is
pledged, or obligations of a person controlled or supervised by and acting as an
agency or instrumentality of the United States and the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States which, in either case, are not callable or redeemable at the option of
the issuer thereof, and shall also include a depositary receipt issued by a bank
(as defined in Section 3(a)(2) of the Securities Act) as custodian with
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respect to any such U.S. Government Obligations or a specific payment of
principal of or interest on any such U.S. Government Obligations held by such
custodian for the account of the holder of such depositary receipt, PROVIDED
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary receipt from
any amount received by the custodian in respect of the U.S. Government
Obligations or the specific payment of principal of or interest on the U.S.
Government Obligations evidenced by such depositary receipt. (Section 101)
CONCERNING THE TRUSTEES
The Company maintains banking relationships in the ordinary course of
business with The Chase Manhattan Bank, N.A. and Mellon Bank, N.A. In addition,
Mellon Bank, N.A. is a participant in the Company's $500 million revolving
credit facility entered into as of December 13, 1994.
DESCRIPTION OF CAPITAL STOCK
The following descriptions and the descriptions contained in "Description of
Preferred Stock" and "Description of Common Stock" are summaries, and reference
is herein made to the detailed provisions of the following documents, copies of
which are filed as exhibits to the Registration Statement: (i) the Company's
Certificate of Incorporation, as amended (the "Certificate of Incorporation");
(ii) the Company's By-Laws (the "By-Laws"); and (iii) the Rights Agreement
between the Company and First Chicago Trust Company of New York, as Rights Agent
(the "Rights Agreement"), pursuant to which shares of Junior Participating
Preferred Stock, Series A ("Junior Participating Preferred Stock") are issuable.
The authorized capital stock of the Company consists of: (i) 120,000,000
shares of Common Stock, par value $0.10 per share, and (ii) 10,000,000 shares of
Preferred Stock, par value $0.10 per share, of which 1,000,000 are designated as
Junior Participating Preferred Stock.
As of March 31, 1996, there were outstanding: (a) 73,274,752 shares of
Common Stock (as well as the same number of rights to purchase shares of Junior
Participating Preferred Stock, pursuant to the Rights Agreement) and (b)
employee stock options to purchase an aggregate of 5,835,464 shares of Common
Stock.
DESCRIPTION OF PREFERRED STOCK
The following description sets forth certain general terms and provisions of
the Preferred Stock to which any Prospectus Supplement may relate. Certain other
terms of a particular series of Preferred Stock will be described in the
Prospectus Supplement relating to that series. If so indicated in the Prospectus
Supplement, the terms of any such series may differ from the terms set forth
below. The description of certain provisions of the Preferred Stock set forth
below and in any Prospectus Supplement does not purport to be complete and is
subject to and qualified in its entirety by reference to the Company's
Certificate of Incorporation and the certificate of designation relating to each
such series of Preferred Stock, which will be filed with the Commission in
connection with the offering of such series of Preferred Stock.
GENERAL
Under the Company's Certificate of Incorporation, the Board of Directors is
authorized to fix and determine the terms, limitations and relative rights and
preferences of any class of preferred stock, including, without limitation, any
voting rights thereof, to divide and issue any of the classes of preferred stock
in series, and to fix and determine the variations among series to the extent
permitted by law. The Company has authorized 1,000,000 shares of Junior
Participating Preferred Stock for issuance upon
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exercise of certain preferred share purchase rights associated with each share
of outstanding Common Stock as provided in the Rights Agreement. See
"Description of Common Stock--Share Purchase Rights Plan,--Description of Junior
Participating Preferred Stock."
The Preferred Stock shall have the dividend, liquidation, redemption and
voting rights set forth below unless otherwise provided in the Prospectus
Supplement relating to a particular series of Preferred Stock. Reference is made
to the Prospectus Supplement relating to a particular series of Preferred Stock
offered thereby for specific terms including: (1) the designation and the number
of shares offered; (2) the amount of liquidation preference per share; (3) the
price at which such Preferred Stock will be issued; (4) the dividend rate (or
method of calculation), the dates on which dividends will be payable, whether
such dividends will be cumulative or noncumulative and, if cumulative, the dates
from which dividends will commence to cumulate; (5) any redemption or sinking
fund provisions; (6) any conversion or exchange rights; and (7) any additional
voting, dividend, liquidation, redemption, sinking fund and other rights,
preferences, privileges, limitations and restrictions.
The Preferred Stock offered hereby will be issued in one or more series. The
holders of Preferred Stock will have no preemptive rights. Any shares of
Preferred Stock sold hereunder will be fully paid and nonassessable upon
issuance against full payment of the purchase price therefor. Unless otherwise
specified in the Prospectus Supplement relating to a particular series of
Preferred Stock, each series of Preferred Stock will rank on a parity as to
dividends and liquidation rights in all respects with each other series of
Preferred Stock (other than the Junior Participating Preferred Stock).
DIVIDEND RIGHTS
Holders of the Preferred Stock of each series will be entitled to receive,
when, as and if declared by the Board of Directors of the Company, out of funds
legally available therefor, cash dividends at such rates and on such dates as
are set forth in the Prospectus Supplement relating to such series of Preferred
Stock. Different series of the Preferred Stock may be entitled to dividends at
different rates or based upon different methods of determination. Such rate may
be fixed or variable or both. Each such dividend will be payable to the holders
of record as they appear on the stock books of the Company on such record dates
as will be fixed by the Board of Directors of the Company or a duly authorized
committee thereof. Dividends on any series of the Preferred Stock may be
cumulative or noncumulative, as provided in the Prospectus Supplement relating
thereto.
RIGHTS UPON LIQUIDATION
In the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company, the holders of each series of Preferred Stock will be
entitled to receive out of assets of the Company available for distribution to
stockholders, before any distribution of assets is made to holders of Common
Stock or any other class of stock ranking junior to such series of the Preferred
Stock upon liquidation, liquidating distributions in the amount set forth in the
Prospectus Supplement relating to such series of Preferred Stock plus an amount
equal to accrued and unpaid dividends for the then current dividend period and,
if such series of the Preferred Stock is cumulative, for all dividend periods
prior thereto, all as set forth in the Prospectus Supplement with respect to
such shares.
REDEMPTION
The terms, if any, on which shares of a series of Preferred Stock may be
subject to optional or mandatory redemption, in whole or in part, will be set
forth in the Prospectus Supplement relating to such series.
CONVERSION
The terms, if any, on which shares of any series of Preferred Stock are
convertible into Common Stock will be set forth in the Prospectus Supplement
relating thereto. Such terms may include provisions
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for conversion, either mandatory, at the option of the holder, or at the option
of the Company, in which case the number of shares of Common Stock to be
received by the holders of Preferred Stock would be calculated as of a time and
in the manner stated in the Prospectus Supplement.
TRANSFER AGENT AND REGISTRAR
The transfer agent, registrar and dividend disbursement agent for the
Preferred Stock will be designated in the applicable Prospectus Supplement. The
registrar for shares of Preferred Stock will send notices to shareholders of any
meetings at which holders of the Preferred Stock have the right to elect
directors of the Company or to vote on any other matter.
VOTING RIGHTS
The holders of Preferred Stock of a series offered hereby will not be
entitled to vote except as indicated in the Prospectus Supplement relating to
such series of Preferred Stock or as required by applicable law.
DESCRIPTION OF COMMON STOCK
GENERAL
Subject to the rights of the holders of any shares of the Company's
Preferred Stock which may at the time be outstanding, holders of Common Stock
are entitled to such dividends as the Board of Directors may declare out of
funds legally available therefor. The holders of Common Stock will possess
exclusive voting rights in the Company, except to the extent the Board of
Directors specifies voting power with respect to any Preferred Stock issued.
Except as hereinafter described, holders of Common Stock are entitled to one
vote for each share of Common Stock, but will not have any right to cumulate
votes in the election of directors. In the event of liquidation, dissolution or
winding up of the Company, the holders of Common Stock are entitled to receive,
after payment of all of the Company's debts and liabilities and of all sums to
which holders of any Preferred Stock may be entitled, the distribution of any
remaining assets of the Company. Holders of the Common Stock will not be
entitled to preemptive rights with respect to any shares which may be issued.
Any shares of Common Stock sold hereunder will be fully paid and non-assessable
upon issuance against full payment of the purchase price therefor. First Chicago
Trust Company of New York is the transfer agent for the Common Stock. The Common
Stock is listed on the New York Stock Exchange and the Pacific Stock Exchange
under the symbol "UNM."
CERTAIN PROVISIONS
The provisions of the Company's Certificate of Incorporation and By-Laws
which are summarized below may be deemed to have an anti-takeover effect and may
delay, defer or prevent a tender offer or takeover attempt that a stockholder
might consider in such stockholder's best interest, including those attempts
that might result in a premium over the market price for the shares held by
stockholders.
CLASSIFIED BOARD. The Board of Directors is divided into three classes that
are elected for staggered three-year terms. A director may be removed by the
stockholders, but only for cause, and only by the affirmative vote of the
holders, voting as a single class, of 80% or more of the total number of votes
entitled to be cast by all holders of the voting stock which shall include all
capital stock of the Company which by its terms may vote on all matters
submitted to stockholders of the Company generally.
ISSUANCE OF PREFERRED STOCK. Pursuant to the Certificate of Incorporation,
the Board of Directors by resolution may establish one or more series of
Preferred Stock having such number of shares, designation, relative voting
rights, dividend rates, liquidation and other rights, preferences and
limitations as may be fixed by the Board of Directors without any further
stockholder approval. Such rights, preferences, privileges and limitations as
may be established could have the effect of impeding or discouraging the
acquisition of control of the Company.
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BUSINESS COMBINATIONS. In addition, the Certificate of Incorporation and
By-Laws of the Company contain supermajority voting provisions relating to the
approval of business combinations with certain stockholders. Pursuant to the
Company's Certificate of Incorporation, any Business Combination (as defined
therein, which term includes a merger, sale of all or substantially all its
assets, the adoption of a plan of liquidation and similar extraordinary
corporate transactions) with (i) any person (other than the Company, its
subsidiaries, certain employee benefit plans of the Company and the trustees of
such plans) who is the beneficial owner of 10% or more of the UNUM Voting Stock
(as defined below) or (ii) any person who is an Affiliate or Associate (as
defined in Rule 12b-2 of the Exchange Act) of the Company and who was the
beneficial owner of 10% or more of the UNUM Voting Stock at any time in the two
years prior to the date in question (each such person, a "UNUM Interested
Stockholder") must be approved by a supermajority vote, unless the Business
Combination has been approved by the vote of a majority of the Continuing
Directors (as defined below) of the Company's Board of Directors. "UNUM Voting
Stock" means all capital stock of the Company which by its terms may vote on all
matters submitted to stockholders of the Company generally. "Continuing
Director" means any Board of Directors member who while serving as a Board of
Directors member is not an Affiliate or Associate or representative of the UNUM
Interested Stockholder and who was a Board of Directors member before the UNUM
Interested Stockholder became such and includes certain successors to such Board
of Directors members. The required supermajority vote consists of the
affirmative vote of the holders of (i) 80% or more of the UNUM Voting Stock,
voting together as a single class, and (ii) at least a majority of the shares of
UNUM Voting Stock not held by the UNUM Interested Stockholder, voting together
as a single class.
AMENDMENTS TO THE CERTIFICATE OF INCORPORATION. Under the Certificate of
Incorporation, the amendment of, repeal of or adoption of any provision
inconsistent with certain provisions of the Certificate of Incorporation
relating to (i) the election of the Board of Directors, its powers and related
matters requires the affirmative vote of the holders of at least 80% of the
outstanding UNUM Voting Stock, voting together as a single class, and (ii)
Business Combinations with UNUM Interested Stockholders and the required votes
for amendments of the Certificate of Incorporation requires the affirmative vote
of the holders specified in clause (i) above and the affirmative vote of the
holders of at least a majority of the outstanding UNUM Voting Stock which is not
beneficially owned by any UNUM Interested Stockholder, voting together as a
single class. The above supermajority voting requirements do not apply to any
amendment, repeal or adoption recommended by the Board of Directors of the
Company if a majority of the Board of Directors of the Company then in office
consists of persons who would be eligible to serve as Continuing Directors.
AMENDMENTS TO THE BY-LAWS. The Certificate of Incorporation provides that
the By-Laws may be amended by the affirmative vote of a majority of directors
present at a meeting of the Board of Directors at which a quorum is present or
by the affirmative vote of the holders of at least 80% of all outstanding UNUM
Voting Stock, voting together as a single class.
STOCKHOLDER PROPOSAL PROCEDURES. The By-Laws require any stockholder who
wants to present a proposal for action by the stockholders at an annual meeting
to deliver a written notice to the Secretary of the Company. To be timely, a
stockholder's notice must be delivered to, or mailed and received at, the
principal executive offices of the Company, not less than 60 days nor more than
90 days prior to the date of the annual meeting, unless less than 75 days'
notice or prior public disclosure of the date of such meeting has been given or
made to the stockholders, in which case a stockholder's notice must be received
no later than the close of business on the 15th day following the day on which
such notice was mailed or such disclosure was made.
SHARE PURCHASE RIGHTS PLAN
On March 13, 1992, the Board of Directors of the Company adopted a
stockholder rights plan and declared a dividend distribution of one right (a
"Right") for each outstanding share of Common Stock to
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stockholders of record at the close of business on March 23, 1992. Each Right
entitles the registered holder to purchase from the Company a unit consisting of
one one-hundredth of a share (a "Unit") of Junior Participating Preferred Stock,
at a purchase price of $150 per Unit, subject to adjustment (the "Purchase
Price"). The terms of the Junior Participating Preferred Stock are such that one
Unit is essentially equivalent to one share of Common Stock. The description and
terms of the Rights are set forth in a Rights Agreement, dated as of March 13,
1992 and amended as of June 19, 1996 (as amended, the "Rights Agreement"),
between the Company and First Chicago Trust Company of New York, as rights agent
(the "Rights Agent").
Initially, the Rights are attached to all outstanding Common Stock
certificates, and no separate certificates evidencing Rights ("Rights
Certificates") are distributed. The Rights will separate from the Common Stock
and a "Distribution Date" will occur upon the earlier of (i) ten (10) days
following a public announcement that a person or group of affiliated or
associated persons (an "Acquiring Person") has acquired, or obtained the right
to acquire, beneficial ownership of 10% or more of the outstanding shares of
Common Stock, except for persons or a group of affiliated or associated persons
who become the beneficial owner of 10% or more of the outstanding shares of
Common Stock solely as a result of a reduction in the number of shares of Common
Stock outstanding due to a repurchase of shares by the Company unless such
person or group thereafter acquires additional shares representing 1% or more of
the outstanding Common Stock (the "Stock Acquisition Date") or (ii) ten (10)
business days (or such later date as may be determined by the Board of
Directors) following the announcement of a tender offer or exchange offer that
would result in a person or group beneficially owning 10% or more of such
outstanding shares of Common Stock. However, if the Board of Directors of the
Company determines that any person who would otherwise be an Acquiring Person
has become such inadvertently, then such person will not become an Acquiring
Person if certain conditions are satisfied, including divestiture by such person
of beneficial ownership of the shares of Common Stock that would have otherwise
caused such person to become an Acquiring Person.
Until the Distribution Date, (i) the Rights will be evidenced by the Common
Stock certificates and will be transferred with and only with such Common Stock
certificates, (ii) new Common Stock certificates issued after March 23, 1992
contain a notation incorporating the Rights Agreement by reference, and (iii)
the surrender for transfer of any certificates for Common Stock outstanding will
also constitute the transfer of the Rights associated with the Common Stock
represented by such certificates. The Rights are not exercisable until the
Distribution Date and will expire at the close of business on March 13, 2002,
unless earlier redeemed by the Company as described below (the "Expiration
Date").
In the event that (i) a Person becomes an Acquiring Person (except pursuant
to an offer for all outstanding shares of Common Stock which at least a majority
of the members of the Board of Directors who are not officers of the Company and
who are not representatives, nominees, affiliates or associates of an Acquiring
Person determine to be fair to and otherwise in the best interests of the
Company and its stockholders (a "Fair Offer")) or (ii) an Acquiring Person or
any of its affiliates or associates shall merge into or otherwise combine with
the Company in a transaction in which the Company is the surviving corporation
and the Common Stock remains outstanding and unchanged, each holder of a Right
will thereafter have the right to receive, upon exercise, Common Stock (or, in
certain circumstances, cash, property or other securities of the Company or a
reduction in the Purchase Price) having a value equal to two times the exercise
price of the Right. Notwithstanding any of the foregoing, following the
occurrence of any of the events set forth in this paragraph, all Rights that
are, or (under certain circumstances specified in the Rights Agreement) were,
beneficially owned by an Acquiring Person or an associate or affiliate of an
Acquiring Person will be null and void. However, Rights are not exercisable
following the occurrence of any of the events set forth in this paragraph until
such time as the Rights are no longer redeemable by the Company as set forth
below.
In the event that, at any time following the Stock Acquisition Date, (i) the
Company is acquired in a merger or other business combination transaction in
which the Company is not the surviving corporation
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(other than a merger described in the preceding paragraph or a merger which
follows, and is at the same price as, a Fair Offer), or (ii) 50% or more of
UNUM's assets or earning power is sold or transferred, each holder of a Right
(except Rights which previously have become null and void as set forth above)
shall thereafter have the right to receive, upon exercise, common stock of the
acquiring company having a value equal to two times the exercise price of the
Right. The events set forth in this paragraph and in the preceding paragraph are
referred to as the "Triggering Events."
At any time after there is an Acquiring Person and prior to the acquisition
by such Acquiring Person of 50% or more of the outstanding Common Stock, the
Board of Directors may exchange the Rights (other than Rights owned by the
Acquiring Person which have become null and void), in whole or in part, at an
exchange ratio of one share of Common Stock or one Unit of Junior Participating
Preferred Stock (or a share or unit of another series of the Company's preferred
stock having equivalent rights, preferences and privileges) per Right (subject
to adjustment).
At any time until ten (10) days following the Stock Acquisition Date, the
Company may redeem the Rights in whole, but not in part, at a price of $.01 per
Right (the "Redemption Price"), which is payable in cash, Common Stock or other
consideration deemed appropriate by the Board of Directors. Immediately upon the
action of the Board of Directors ordering redemption of the Rights, the Rights
will terminate and the only right of the holders of Rights will be to receive
the Redemption Price.
The Purchase Price payable, and the number of shares of Junior Participating
Preferred Stock or other securities or property issuable, upon exercise of the
Rights are subject to adjustment from time to time to prevent dilution.
Until a Right is exercised, the holder thereof, as such, will have no rights
as a stockholder of the Company, including, without limitation, the right to
vote or to receive dividends. Stockholders may, depending upon the
circumstances, recognize taxable income in the event that the Rights become
exercisable for Common Stock (or other consideration) or for common stock of the
acquiring company as set forth above.
The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire the Company
in a manner which causes the Rights to become exercisable unless the offer is
conditioned on substantially all the Rights being acquired. This potential
dilution may have the effect of delaying, deferring or discouraging attempts to
acquire control of the Company which are not approved by the Company's Board of
Directors. However, the Rights should not interfere with any merger or other
business combination approved by the Company's Board of Directors.
DESCRIPTION OF JUNIOR PARTICIPATING PREFERRED STOCK
GENERAL. In connection with the Rights Agreement, 1,000,000 shares of
Junior Participating Preferred Stock have been reserved and authorized for
issuance by the Board of Directors of the Company. No shares of Junior
Participating Preferred Stock are outstanding as of the date of this Prospectus.
The following statements with respect to the Junior Participating Preferred
Stock do not purport to be complete and are subject to the detailed provisions
of the Certificate of Incorporation and the certificate of designation relating
to the Junior Participating Preferred Stock (the "Certificate of Designation"),
which are filed as exhibits to the Registration Statement of which this
Prospectus is a part.
RANKING. The Junior Participating Preferred Stock shall rank junior to all
other series of the Company's Preferred Stock as to the payment of dividends and
the distribution of assets, unless the terms of any such series shall provide
otherwise.
DIVIDENDS AND DISTRIBUTIONS. Subject to the prior and superior rights of
the holders of any shares of any series of Preferred Stock ranking prior and
superior to the shares of Junior Participating Preferred Stock with respect to
dividends, the holders of shares of Junior Participating Preferred Stock shall
be entitled to receive, when, as and if declared by the Board of Directors out
of funds legally available for
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that purpose, quarterly dividends payable in cash on the 19th day of February,
May, August and November in each year (each such date being referred to herein
as "Quarterly Dividend Payment Date") commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of a share of
Junior Participating Preferred Stock, in an amount per share (rounded to the
nearest cent) equal to the greater of (a) $5.00 or (b) (subject to adjustment
upon certain dilutive events) 100 times the aggregate per share amount of all
cash dividends, and 100 times the aggregate per share amount (payable in kind)
of all non-cash dividends or other distributions other than a dividend payable
in shares of Common Stock or a subdivision of the outstanding shares of Common
Stock (by reclassification or otherwise), declared on the Common Stock, since
the immediately preceding Quarterly Dividend Payment Date, or, with respect to
the first Quarterly Dividend Payment Date, since the first issuance of any share
or fraction of a share of Junior Participating Preferred Stock.
The Company shall declare a dividend or distribution on the Junior
Participating Preferred Stock immediately after it declares a dividend or
distribution on the Common Stock (other than a dividend payable in shares of
Common Stock); provided that, in the event no dividend or distribution shall
have been declared on the Common Stock during the period between any Quarterly
Dividend Payment Date and the next subsequent Quarterly Dividend Payment Date, a
dividend of $5.00 per share on the Junior Participating Preferred Stock shall
nevertheless be payable on such subsequent Quarterly Dividend Payment Date.
VOTING RIGHTS. The holders of shares of Junior Participating Preferred
Stock shall have the following voting rights: (a) subject to adjustment upon
certain dilutive events, each share of Junior Participating Preferred Stock
shall entitle the holder thereof to 100 votes on all matters submitted to a vote
of the stockholders of the Company; (b) except as otherwise provided by the
Certificate of Designation or by law, the holders of shares of Junior
Participating Preferred Stock and the holders of shares of Common Stock shall
vote together as one class on all matters submitted to a vote of stockholders of
the Company; and (c) if at any time dividends on any Junior Participating
Preferred Stock shall be in arrears in an amount equal to six (6) quarterly
dividends thereon, the occurrence of such contingency shall mark the beginning
of a period (herein called a "default period") which shall extend until such
time when all accrued and unpaid dividends for all previous quarterly dividend
periods and for the current quarterly dividend period on all shares of Junior
Participating Preferred Stock then outstanding shall have been declared and paid
or set apart for payment. During each default period, all holders of Preferred
Stock (including holders of the Junior Participating Preferred Stock) with
dividends in arrears in an amount equal to six (6) quarterly dividends thereon,
voting as a class, irrespective of series, shall have the right to elect two (2)
Directors, until the expiration of a default period.
LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any liquidation (voluntary or
otherwise), dissolution or winding up of the Company, no distribution shall be
made to the holders of shares of stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Junior Participating
Preferred Stock unless, prior thereto, the holders of shares of Junior
Participating Preferred Stock shall have received $250 per share, plus an amount
equal to accrued and unpaid dividends and distributions thereon, whether or not
declared, to the date of such payment (the "Series A Liquidation Preference").
Following the payment of the full amount of the Series A Liquidation Preference,
no additional distributions shall be made to the holders of shares of Junior
Participating Preferred Stock unless, prior thereto, the holders of shares of
Common Stock shall have received an amount per share (the "Common Adjustment")
equal to the quotient obtained by dividing (i) the Series A Liquidation
Preference by (ii) 100 (as appropriately adjusted to reflect such events as
stock splits, stock dividends and recapitalizations with respect to the Common
Stock) (such number in clause (ii) immediately above being referred to as the
"Adjustment Number"). Following the payment of the full amount of the Series A
Liquidation Preference and the Common Adjustment in respect of all outstanding
shares of Junior Participating Preferred Stock and Common Stock, respectively,
holders of Junior Participating Preferred Stock and
22
<PAGE>
holders of shares of Common Stock shall receive their ratable and proportionate
share of the remaining assets to be distributed in the ratio of the Adjustment
Number to one (1) with respect to such Preferred Stock and Common Stock, on a
per share basis, respectively.
In the event, however, that there are not sufficient assets available to
permit payment in full of the Series A Liquidation Preference and the
liquidation preferences of all other series of preferred stock, if any, which
rank on a parity with the Junior Participating Preferred Stock, then such
remaining assets shall be distributed ratably to the holders of such parity
shares in proportion to their respective liquidation preferences. In the event,
however, that there are not sufficient assets available to permit payment in
full of the Common Adjustment, then such remaining assets shall be distributed
ratably to the holders of Common Stock.
CONSOLIDATION, MERGER, ETC. In case the Company shall enter into any
consolidation, merger, combination or other transaction in which the shares of
Common Stock are exchanged for or changed into other stock or securities, cash
and/or any other property, then in any such case, the shares of Junior
Participating Preferred Stock shall at the same time be similarly exchanged or
changed in an amount per share (subject to adjustment upon certain dilutive
events) equal to 100 times the aggregate amount of stock, securities, cash
and/or any other property (payable in kind), as the case may be, into which or
for which each share of Common Stock is changed or exchanged.
REDEMPTION. The outstanding shares of Junior Participating Preferred Stock
may be redeemed at the option of the Board of Directors in whole, but not in
part, at any time, or from time to time, at a cash price per share equal to 105
percent of (i) the product of the Adjustment Number times the Average Market
Value (as such term is hereinafter defined) of the Common Stock, plus (ii) all
dividends which on the redemption date have accrued on the shares to be redeemed
and have not been paid, or declared and a sum sufficient for the payment thereof
set apart, without interest. The "Average Market Value" is the average of the
closing sale prices of the Common Stock during the 30-day period immediately
preceding the date before the redemption date on the Composite Tape for New York
Stock Exchange Listed Stocks, or, if such stock is not quoted on the Composite
Tape, on the New York Stock Exchange, or, if such stock is not listed on such
Exchange, on the principal United States securities exchange registered under
the Exchange Act, on which such stock is listed, or, if such stock is not listed
on any such exchange, the average of the closing sale prices with respect to a
share of Common Stock during such 30-day period, as quoted on the National
Association of Securities Dealers, Inc. Automated Quotations System or any
system then in use, or, if no such quotations are available, the fair market
value of the Common Stock as determined by the Board of Directors in good faith.
DESCRIPTION OF WARRANTS
The Company may issue Warrants, including Warrants to purchase Debt
Securities, Preferred Stock, Common Stock or other securities of the Company.
Warrants may be issued independently or together with any such securities of the
Company and may be attached to or separate from such securities of the Company.
The Warrants are to be issued under warrant agreements (each a "Warrant
Agreement") to be entered into between the Company and a bank or trust company,
as warrant agent (the "Warrant Agent"), all as shall be set forth in the
Prospectus Supplement relating to Warrants being offered pursuant thereto.
WARRANTS
The applicable Prospectus Supplement will describe the terms of Warrants
offered thereby, the Warrant Agreement relating to such Warrants and the warrant
certificates representing such Warrants, including the following: (1) the title
of such Warrants; (2) the securities of the Company for which such Warrants are
exercisable; (3) the aggregate number of such Warrants; (4) the price or prices
at which such Warrants will be issued; (5) the currency or currencies, including
composite currencies or currency units, in which the price of such Warrants may
be payable; (6) the procedures and conditions relating to
23
<PAGE>
the exercise of such Warrants; (7) the designation and terms of any related
securities of the Company with which such Warrants are issued, and the number of
such Warrants issued with each such security; (8) the date, if any, on and after
which such Warrants and the related securities of the Company will be separately
transferable; (9) the date on which the right to exercise such Warrants shall
commence, and the date on which such right shall expire; (10) the maximum or
minimum number of such Warrants which may be exercised at any time; (11) a
discussion of material United States Federal income tax considerations, if any;
(12) any other terms of such Warrants and terms, procedures and limitations
relating to the exercise of such Warrants; and (13) the terms of the securities
of the Company purchasable upon exercise of such Warrants.
Warrant certificates will be exchanged for new warrant certificates of
different denominations, and Warrants may be exercised at the corporate trust
office of the Warrant Agent or any other office indicated in the Prospectus
Supplement. Prior to the exercise of their Warrants, holders of Warrants
exercisable for Debt Securities will not have any of the rights of holders of
the Debt Securities purchasable upon such exercise and will not be entitled to
payments of principal (or premium, if any) or interest, if any, on the Debt
Securities purchasable upon such exercise. Prior to the exercise of their
Warrants for shares of Preferred Stock or Common Stock, holders of such Warrants
will not have any rights of holders of the Preferred Stock or Common Stock
purchasable upon such exercise and will not be entitled to dividend payments, if
any, or voting rights of the Preferred Stock or Common Stock purchasable upon
such exercise.
EXERCISE OF WARRANTS
Each Warrant will entitle the holder of Warrants to purchase for cash such
principal amount or such number of securities of the Company at such exercise
price as shall in each case be set forth in, or be determinable as set forth in,
the Prospectus Supplement relating to the Warrants offered thereby. After the
close of business on the expiration date, unexercised Warrants will become void.
Warrants may be exercised as set forth in the Prospectus Supplement relating
to the Warrants offered thereby. Upon receipt of payment and the warrant
certificate properly completed and duly executed at the corporate trust office
of the Warrant Agent or any other office indicated in the Prospectus Supplement,
the Company will, as soon as practicable, forward the securities purchasable
upon such exercise. If less than all of the Warrants represented by such warrant
certificate are exercised, a new warrant certificate will be issued for the
remaining Warrants.
FOREIGN CURRENCY RISKS
GENERAL
EXCHANGE RATES AND EXCHANGE CONTROLS. An investment in Debt Securities
denominated in other than U.S. dollars entails significant risks that are not
associated with a similar investment in a security denominated in U.S. dollars.
Such risks include, without limitation, the possibility of significant changes
in rates of exchange between the U.S. dollar and the various foreign currencies
or composite currencies, and the possibility of the imposition or modification
of foreign exchange controls by either the U.S. or foreign governments. Such
risks generally depend on economic and political events over which the Company
has no control. In recent years, rates of exchange between the U.S. dollar and
certain foreign currencies have been highly volatile, and such volatility may be
expected to continue in the future. Fluctuations in any particular exchange rate
that have occurred in the past are not necessarily indicative, however, of
fluctuations in the rate that may occur during the term of any Debt Security.
Depreciation of the Specified Currency other than U.S. dollars against the U.S.
dollar would result in a decrease in the effective yield of such Debt Security
below its coupon rate, and in certain circumstances could result in a loss to
the investor on a U.S. dollar basis.
Governments have imposed from time to time and may in the future impose
exchange controls that could affect exchange rates as well as the availability
of a specified foreign currency at a Debt Security's
24
<PAGE>
maturity. Even if there are no actual exchange controls, it is possible that the
Specified Currency for any particular Debt Security would not be available at
such Debt Security's maturity. In that event, the Company will repay such Debt
Security at maturity in U.S. dollars on the basis of the most recently available
Exchange Rate.
This Prospectus does not describe all the risks of an investment in Debt
Securities denominated in other than U.S. dollars. Prospective investors should
consult their own financial and legal advisors as to the risks entailed by an
investment in Debt Securities denominated in other than U.S. dollars. Debt
Securities denominated in other than U.S. dollars are not an appropriate
investment for investors who are unsophisticated about foreign currency
transactions.
Currently, there are limited facilities in the United States for conversion
of U.S. dollars into certain foreign currencies, and vice versa.
Unless otherwise specified in the Prospectus Supplement, Debt Securities
denominated in other than U.S. dollars or European currency units will not be
sold in, or to residents of, the country issuing the Specified Currency in which
particular Debt Securities are denominated. The information set forth in this
Prospectus is directed to prospective purchasers who are United States
residents, and the Company disclaims any responsibility to advise prospective
purchasers who are residents of countries other than the United States as to any
matters that may affect the purchase, holding, or receipt of payments of
principal of and interest on the Debt Securities. Such persons should consult
their own financial and legal advisors with regard to such matters.
GOVERNING LAW AND JUDGMENTS. The Debt Securities will be governed by and
construed in accordance with the laws of the State of New York. Under the
Judiciary Law of the State of New York, a judgment in an action based upon an
obligation denominated in a currency other than U.S. dollars will be rendered in
the foreign currency of the underlying obligation and converted into U.S.
dollars at the rate of exchange prevailing on the date of the entry of the
judgment or decree.
EXCHANGE RATE AND CONTROLS FOR SPECIFIED CURRENCIES
For any Debt Security denominated in other than U.S. dollars, the Prospectus
Supplement relating to such Debt Securities will contain information concerning
exchange rates. The information concerning exchange rates will be furnished as a
matter of information only and should not be regarded as indicative of the rate
of or trends in future fluctuations in currency exchange rates.
PLAN OF DISTRIBUTION
The Company may sell Securities to or through underwriters, and also may
sell Securities directly to other purchasers or through agents.
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
In connection with the sale of Securities, underwriters may receive
compensation from the Company or from purchasers of Securities, for whom they
may act as agents, in the form of discounts, concessions, or commissions.
Underwriters may sell Securities to or through dealers, and such dealers may
receive compensation in the form of discounts, concessions, or commissions from
the underwriters and/or commissions from the purchasers for whom they may act as
agents. Underwriters, dealers, and agents that participate in the distribution
of Securities may be deemed to be underwriters, and any discounts or commissions
they receive from the Company, and any profit on the resale of Securities they
realize may be deemed to be underwriting discounts and commissions, under the
Securities Act. Any such underwriter or agent will be identified, and any such
compensation received from the Company will be described, in the Prospectus
Supplement.
25
<PAGE>
Each series of Securities will be a new issue with no established trading
market, other than the Common Stock which is listed on the New York Stock
Exchange and the Pacific Stock Exchange. Any Common Stock sold pursuant to a
Prospectus Supplement will be listed on such exchanges, subject to official
notice of issuance. The Company may elect to list any series of Debt Securities,
Preferred Stock or Warrants on an exchange, but is not obligated to do so. It is
possible that one or more underwriters may make a market in a series of
Securities, but will not be obligated to do so and may discontinue any market
making at any time without notice. Therefore, no assurance can be given as to
the liquidity of the trading market for the Securities.
Under agreements the Company may enter into, underwriters, dealers, and
agents who participate in the distribution of Securities maybe entitled to
indemnification by the Company against certain liabilities, including
liabilities under the Securities Act.
Underwriters, dealers and agents may engage in transactions with, or perform
services for, or be customers of, the Company in the ordinary course of
business.
If so indicated in the Prospectus Supplement, the Company will authorize
underwriters or other persons acting as the Company's agents to solicit offers
by certain institutions to purchase Securities from the Company pursuant to
contracts providing for payment and delivery on a future date. Institutions with
which such contracts may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions and others, but in all cases such institutions must be approved by
the Company. The obligations of any purchaser under any such contract will be
subject to the condition that the purchase of the Securities shall not at the
time of delivery be prohibited under the laws of the jurisdiction to which such
purchaser is subject. The underwriters and such other agents will not have any
responsibility in respect of the validity or performance of such contracts.
VALIDITY OF THE SECURITIES
The validity of the Securities will be passed upon for the Company by
Skadden, Arps, Slate, Meagher & Flom, New York, New York. The validity of the
Securities in connection with any offering thereof will be passed upon for the
Company by Kevin J. Tierney, Senior Vice President, Secretary and General
Counsel of the Company and by Skadden, Arps, Slate, Meagher & Flom, New York,
New York with respect to certain matters of New York law, and for the
underwriters or agents by Sullivan & Cromwell, New York, New York. Mr. Tierney
owns less than one percent of the Company's Common Stock.
EXPERTS
The consolidated financial statements of the Company and its subsidiaries
included in the Company's Annual Report on Form 10-K for the year ended December
31, 1995, have been incorporated herein by reference in reliance upon the report
of Coopers & Lybrand L.L.P, independent certified public accountants,
incorporated by reference herein, and upon the authority of said firm as experts
in accounting and auditing.
26
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth all expenses in connection with the issuance
and distribution of the Securities being registered. All amounts except the SEC
registration fee and the rating agency fees are estimates.
<TABLE>
<CAPTION>
SEC registration fee............................................. $ 139,484
<S> <C>
Fees and expenses of accountants................................. 90,000
Fees and expenses of counsel..................................... 100,000
Blue sky fees and expenses....................................... 23,000
Fees and expenses of Trustee..................................... 20,000
Printing and engraving expenses.................................. 75,000
Rating agency fees............................................... 125,000
Miscellaneous.................................................... 5,000
---------
Total.................................................... $ 577,484
---------
---------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article Thirteenth of the Company's Certificate of Incorporation provides
for the elimination of personal monetary liabilities of directors of the Company
for breaches of certain of their fiduciary duties to the full extent permitted
by Section 102(b)(7) of the General Corporation Law of Delaware (the "GCL").
Section 102(b)(7) of the GCL enables a corporation in its certificate of
incorporation to eliminate or limit the personal liability of members of its
board of directors to the corporation or its stockholders for monetary damages
for violations of a director's fiduciary duty of care. Such a provision has no
effect on the availability of equitable remedies, such as an injunction or
rescission, for breach of fiduciary duty. In addition, no such provision may
eliminate or limit the liability of a director for breaching his duty of
loyalty, failing to act in good faith, engaging in intentional misconduct or
knowingly violating the law, paying an unlawful dividend or approving an illegal
stock repurchase, or obtaining an improper personal benefit.
Article VIII of the Company's By-Laws provides that directors and certain
other personnel of the Company shall be indemnified against expenses and certain
other liabilities arising out of legal actions brought or threatened against
them for their conduct on behalf of the Company, subject to certain
qualifications and provided that each such person acted in good faith and in a
manner that such person reasonably believed was in the Company's best interest.
The Company has entered into indemnification agreements with each director and
certain officers of the Company and one of its subsidiaries providing that (a)
the Company agrees to comply in all respects with each and every provision of
Article VIII of the By-Laws in effect on the date of the agreement, (b) no
amendment to Article VIII or the agreement will eliminate, reduce or affect any
such directors' or officers' rights under Article VIII or the agreement with
respect to indemnification, and (c) no legal action shall be brought and no
cause of action shall be asserted by or on behalf of the Company against the
indemnified party after the expiration of two years from the date of accrual of
such cause of action.
The Company maintains directors, and officers, liability insurance which
insures against liabilities that directors or officers of the Company may incur
in such capacities.
II-1
<PAGE>
ITEM 16. LIST OF EXHIBITS.
The following exhibits are filed as part of this Registration Statement.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF EXHIBITS
- ----------- ------------------------------------------------------------------------------------------------
<C> <C> <S>
1.1 -- Form of Underwriting Agreement for the Securities.
1.2 -- Form of Distribution Agreement for Medium-Term Notes, Series C.
3.1 -- Certificate of Incorporation of UNUM Corporation, as amended; incorporated herein by reference
to UNUM Corporation's Annual Report on Form 10-K dated March 25, 1992.
3.2 -- By-Laws of UNUM Corporation; incorporated herein by reference to UNUM Corporation's Annual
Report on Form 10-K dated March 25, 1992.
4.1(a) -- Rights Agreement; incorporated herein by reference to UNUM Corporation's Form 8-K dated March
18, 1992.
4.1(b) -- First Amendment, dated as of June 19, 1996, to Rights Agreement, incorporated herein by
reference to UNUM Corporation's Form 8-A dated June 21, 1996.
4.2 -- Form of Certificate for shares of Common Stock; incorporated herein by reference to UNUM
Corporation's Registration Statement on Form S-4 (File No. 33-55870).
4.3 -- Indenture dated as of September 15, 1990 between UNUM Corporation and The Chase Manhattan Bank
(National Association), as Trustee (including the form of the Senior Debt Securities);
incorporated herein by reference to UNUM Corporation's Registration Statement on Form S-3 (File
No. 33-36873).
4.4 -- Indenture dated as of May 1, 1995 between UNUM Corporation and Mellon Bank, N.A., as Trustee
(including the form of the Subordinated Debt Securities); incorporated by reference to UNUM
Corporation's Form 8-K dated May 1, 1995.
5 -- Opinion of Skadden, Arps, Slate, Meagher & Flom.
12 -- Statements re: Computation of Ratio of Earnings to Fixed Charges.
15 -- Letter re: Unaudited Interim Financial Information.
23.1 -- Consent of Skadden, Arps, Slate, Meagher & Flom (included as part of Exhibit 5).
23.2 -- Consent of Coopers & Lybrand L.L.P.
24 -- Powers of Attorney, included as part of the signature page hereof.
25.1 -- Form T-1 Statement of Eligibility of The Chase Manhattan Bank (National Association) under the
Trust Indenture Act of 1939.
25.2 -- Form T-1 Statement of Eligibility of Mellon Bank, N.A. under the Trust Indenture Act of 1939.
</TABLE>
ITEM 17. UNDERTAKINGS.
The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement;
II-2
<PAGE>
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
PROVIDED, HOWEVER, that paragraphs (1)(i) and (1)(ii) do not apply if the
Registration Statement is on Form S-3 and the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the Company
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the Securities being registered which remain unsold at the termination of the
offering.
The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company's annual
report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934
that is incorporated by reference in this Registration Statement shall be deemed
to be a new registration statement relating to the securities therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the provisions referred to an Item 15 of this Registration
Statement, or otherwise, the Company has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Company of expenses incurred or paid by a director, officer or controlling
person of the Company in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the Securities being registered, the Company will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Portland and State of Maine, on the 12th day of July,
1996.
UNUM CORPORATION
By: /s/ JAMES F. ORR III
-----------------------------------
JAMES F. ORR III
CHAIRMAN OF THE BOARD,
PRESIDENT, AND CHIEF
EXECUTIVE OFFICER
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Kevin J. Tierney and John-Paul DeRosa his true
and lawful attorneys-in-fact and agents, each acting alone, with full powers of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all amendments to this Registration
Statement, including post-effective amendments, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, and hereby ratifies and
confirms all his said attorneys-in-fact and agents, each acting alone, or his
substitute or substitutes, may lawfully do or cause to be done by virtue
thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on the 12th day of July, 1996.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------------------------------ ---------------------------------------------------------
<C> <S>
/s/ JAMES F. ORR III
------------------------------------------- Chairman of the Board, President and Chief Executive
JAMES F. ORR III Officer
/s/ ROBERT W. CRISPIN
------------------------------------------- Executive Vice President and Chief Financial Officer
ROBERT W. CRISPIN
/s/ STEPHEN D. ROBERTS
------------------------------------------- Vice President and Corporate Controller
STEPHEN D. ROBERTS
/s/ GAYLE O. AVERYT
------------------------------------------- Director
GAYLE O. AVERYT
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------------------------------ ---------------------------------------------------------
<C> <S>
/s/ ROBERT E. DILLON, JR.
------------------------------------------- Director
ROBERT E. DILLON, JR.
/s/ GWAIN H. GILLESPIE
------------------------------------------- Director
GWAIN H. GILLESPIE
/s/ RONALD E. GOLDSBERRY
------------------------------------------- Director
RONALD E. GOLDSBERRY
/s/ DONALD W. HARWARD
------------------------------------------- Director
DONALD W. HARWARD
/s/ GEORGE J. MITCHELL
------------------------------------------- Director
GEORGE J. MITCHELL
/s/ CYNTHIA A. MONTGOMERY
------------------------------------------- Director
CYNTHIA A. MONTGOMERY
/s/ JAMES L. MOODY, JR.
------------------------------------------- Director
JAMES L. MOODY, JR.
/s/ LAWRENCE R. PUGH
------------------------------------------- Director
LAWRENCE R. PUGH
/s/ LOIS DICKSON RICE
------------------------------------------- Director
LOIS DICKSON RICE
/s/ JOHN W. ROWE
------------------------------------------- Director
JOHN W. ROWE
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO.
- -----------
<C> <C> <S> <C>
1.1 -- Form of Underwriting Agreement for the Securities.
1.2 -- Form of Distribution Agreement for Medium-Term Notes, Series C.
3.1 -- Certificate of Incorporation of UNUM Corporation, as amended, incorporated herein by
reference to UNUM Corporation's Annual Report on Form 10-K dated March 25, 1992.
3.2 -- By-Laws of UNUM Corporation; incorporated herein by reference to UNUM Corporation's
Annual Report on Form 10-K dated March 25, 1992.
4.1(a) -- Rights Agreement; incorporated herein by reference to UNUM Corporation's Form 8-K dated
March 18, 1992.
4.1(b) -- First Amendment, dated as of June 19, 1996, to Rights Agreement; incorporated herein by
reference to UNUM Corporation's Form 8-A dated June 21, 1996.
4.2 -- Form of Certificate for shares of Common Stock; incorporated herein by reference to
UNUM Corporation's Registration Statement on Form S-4 (File No. 33-55870).
4.3 -- Indenture dated as of September 15, 1990 between UNUM Corporation and The Chase
Manhattan Bank (National Association), as Trustee (including the form of the Senior
Debt Securities): incorporated herein by reference to UNUM Corporation's Registration
Statement on Form S-3 (File No. 33-36873).
4.4 -- Indenture dated as of May 1, 1995 between UNUM Corporation and Mellon Bank, N.A., as
Trustee (including the form of the Subordinated Debt Securities); incorporated by
reference to UNUM Corporation's Form 8-K dated May 1, 1995.
5 -- Opinion of Skadden, Arps, Slate, Meagher & Flom.
12 -- Statements re: Computation of Ratio of Earnings to Fixed Charges.
15 -- Letter re: Unaudited Interim Financial Information.
23.1 -- Consent of Skadden, Arps, Slate, Meagher & Flom (included as part of Exhibit 5).
23.2 -- Consent of Coopers & Lybrand L.L.P.
24 -- Powers of Attorney, included as part of the signature page hereof.
25.1 -- Form T-1 Statement of Eligibility of The Chase Manhattan Bank (National Association)
under the Trust Indenture Act of 1939.
25.2 -- Form T-1 Statement of Eligibility of Mellon Bank, N.A. under the Trust Indenture Act of
1939.
</TABLE>
II-6
<PAGE>
UNUM CORPORATION
[INSERT TITLE OF SECURITIES]
UNDERWRITING AGREEMENT
July , 1996
GOLDMAN, SACHS & CO.
85 BROAD STREET
NEW YORK, NEW YORK 10004
Dear Sirs:
From time to time UNUM Corporation, a Delaware corporation (the "Company"),
proposes to enter into one or more Pricing Agreements (each a "Pricing
Agreement") in the form of Annex I hereto, with such additions and deletions as
the parties thereto may determine, and, subject to the terms and conditions
stated herein and therein, to issue and sell to the firms named in Schedule I to
the applicable Pricing Agreement (such firms constituting the "Underwriters"
with respect to such Pricing Agreement and the securities specified therein)
certain [shares] of its [debt securities] [[common] [preferred] stock]
[warrants] (the "Securities") specified in Schedule II to such Pricing Agreement
(with respect to such Pricing Agreement, the "Firm Securities" and together with
any Optional Securities, as defined below, the "Designated Securities"), less
the [principal amount] [number] of Designated Securities covered by Delayed
Delivery Contracts, if any, as provided in Section 3 hereof and as may be
specified in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, any Designated Securities to be covered by Delayed Delivery Contracts
being herein sometimes referred to as "Contract Securities" and the Designated
Securities to be purchased by the Underwriters (after giving effect to the
deduction, if any, for Contract Securities) being herein sometimes referred to
as "Underwriters' Securities").
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto [IF DEBT
SECURITIES--and in or pursuant to the indenture (the "Indenture") identified in
such Pricing Agreement] [IF PREFERRED STOCK--and in or pursuant to the
resolution or resolutions of the board of directors of the Company or a
committee thereof or by duly authorized officers of the Company identified in
such Pricing Agreement and set forth in a certificate of incorporation, as
amended, including the applicable Certificate of Designations to be filed with
the Secretary of State of the State of Delaware
<PAGE>
identified in such Pricing Agreement] [IF WARRANTS--and in or pursuant to the
Warrant Agreement identified in such Pricing Agreement].
1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to Underwriters who act without any firm being designated
as their representative. This Underwriting Agreement shall not be construed as
an obligation of the Company to sell any of the Securities or as an obligation
of any of the Underwriters to purchase the Securities. The obligation of the
Company to issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced by the Pricing
Agreement with respect to the Designated Securities specified therein. Each
Pricing Agreement with respect to Designated Securities shall be substantially
in the form attached hereto as Annex I and shall specify the names of the
Underwriters of such Designated Securities, the names of the Representatives, if
any, of such Underwriters, the [INSERT IF DEBT SECURITIES--principal amount of]
[INSERT IF COMMON OR PREFERRED STOCK--aggregate number of] Firm Securities and
the [INSERT IF DEBT SECURITIES--principal amount of] [INSERT IF COMMON OR
PREFERRED STOCK--maximum number of] Optional Securities, if any, to be purchased
by each Underwriter and the commission, if any, payable to the Underwriter with
respect thereto, whether any of such Designated Securities shall be covered by
Delayed Delivery Contracts (as defined in Section 3 hereof), the purchase price
to the Underwriters of such Designated Securities, the nature of the funds to be
delivered by the Underwriters [and][ , ] the initial public offering price or
the manner of determining such price, if any [IF DEBT SECURITIES, INSERT--,
including, interest rates, if any, maturity, whether such Securities will be
convertible at the option of the holder thereof into [shares of the Company's
Common Stock, par value $.10 per share (the "Common Stock")] [INSERT DESCRIPTION
OF OTHER SECURITIES INTO WHICH CONVERTIBLE], any conversion rates or price(s),
whether warrants shall be attached to such Debt Securities, any redemption
provisions and any sinking fund requirements] [IF PREFERRED STOCK, INSERT--,
annual dividend rates, sinking fund provisions, if any, whether such Securities
will be convertible at the option of the holder thereof into shares of the
Company's Common Stock]. A Pricing Agreement shall be in the form of an executed
writing (which may be in counterparts, and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted). The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
2
<PAGE>
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) Two registration statements on Form S-3 (No. 33-69132 and No.
333- ), including a prospectus for use in connection with the
Designated Securities pursuant to Rule 429 under the Securities Act of
1933, as amended (the "Act"), in respect of the Securities [and any [shares
of Common Stock] [INSERT OTHER SECURITIES INTO WHICH CONVERTIBLE OR ARE
EXCHANGEABLE FOR] issuable upon conversion or exercise of or exchange of
the Securities] have been filed with the Securities and Exchange Commission
(the "Commission"); such registration statements and any post-effective
amendment thereto, each in the form heretofore delivered or to be delivered
to the Representatives for each of the other Underwriters and, excluding
exhibits to such registration statements, but including all documents
incorporated by reference in the prospectuses contained therein, have been
declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering (a
"Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b) under
the Act, which became effective upon filing, no other document with respect
to such registration statements or document incorporated by reference
therein has heretofore been filed or transmitted for filing with the
Commission; such prospectus included for use in connection with the
Securities pursuant to Rule 429 under the Act meets the requirements of the
Act and the rules and regulations thereunder for use of such prospectus in
connection with the Securities; and no stop order suspending the
effectiveness of either of such registration statements, any post-effective
amendment thereto, or the Rule 462(b) Registration Statement, if any, has
been issued and no proceeding for that purpose has been initiated or
threatened by the Commission. Any preliminary prospectus included in either
of such registration statements or filed with the Commission pursuant to
Rule 424(a) of the rules and regulations of the Commission under the Act,
is hereinafter called a "Preliminary Prospectus;" the various parts of such
registration statements and the Rule 462(b) Registration Statement, if any,
including all exhibits thereto and the documents incorporated by reference
in the prospectuses contained in such registration statements and the Rule
462(b) Registration Statement, if any, at the time such part of such
registration statements or such part of the Rule 462(b) Registration
Statement, if any, became or hereafter becomes effective but excluding Form
T-1, each as amended at the time such part of the registration statements
or such part of the Rule 462(b) Registration Statement, if any, became
effective and at the time each incorporated document was filed with the
Commission is hereinafter called the "Registration Statement;" the
prospectus relating to the Securities, in the form in which it has most
recently been filed, or transmitted for filing, with the Commission on or
prior to the date of this Agreement, is
3
<PAGE>
hereinafter called the "Prospectus;" any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the date
of such Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of the
Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after
the effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any reference to the
Prospectus as amended or supplemented shall be deemed to refer to the
Prospectus as amended or supplemented in relation to the applicable
Designated Securities in the form in which it is filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
hereof, including any documents incorporated by reference therein as of the
date of such filing);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto,
when such documents become effective or are filed with the Commission, as
the case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration
4
<PAGE>
Statement or the Prospectus will conform, in all material respects to the
requirements of the Act [IF DEBT SECURITIES, INSERT--, and the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act")] and the
rules and regulations of the Commission thereunder and do not and will not,
as of the applicable effective date as to the Registration Statement and
any amendment thereto and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein (i) in the
case of the Registration Statement, not misleading and (ii) in the case of
the Prospectus, in light of the circumstances under which they were made,
not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Securities;
(d) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus; and, since the respective dates as of
which information is given or incorporated by reference in the Registration
Statement and the Prospectus, there has not been any material change in the
capital stock or long-term debt of the Company or any of its subsidiaries
or any material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries considered as a whole, otherwise than as set
forth or contemplated in the Prospectus;
(e) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction
in which it owns or leases properties, or conducts any business, so as to
require such qualification, except for any jurisdiction where failure to so
qualify will not have a material adverse effect on the Company; and each
subsidiary of the Company has been duly organized and is validly existing
as
5
<PAGE>
a corporation in good standing under the laws of its jurisdiction of
incorporation;
(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
nonassessable;
(g) [INSERT IF DEBT SECURITIES--The Firm Securities and any Optional
Securities have been duly and validly authorized, and, when the Firm
Securities are issued and delivered pursuant to this Agreement, and the
Pricing Agreement with respect to such Designated Securities and, in the
case of any Contract Securities, pursuant to Delayed Delivery Contracts (as
defined in Section 3 hereof) with respect to such Contract Securities, and
in the case of any Optional Securities pursuant to Over-allotment Options
(as defined in Section 3 hereof) with respect to such Securities, such
Designated Securities will have been duly executed, authenticated, issued
and delivered and will constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the Indenture, which will
be substantially in the form filed as an exhibit to the Registration
Statement; the Indenture has been duly authorized and duly qualified under
the Trust Indenture Act and, at the Time of Delivery for such Designated
Securities (as defined in Section 4 hereof), the Indenture will constitute
a valid and legally binding instrument, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
indenture conforms, and the Designated Securities will conform, to the
descriptions thereof contained in the Prospectus as amended or supplemented
with respect to such Designated Securities;]
[(-) INSERT IF COMMON STOCK--The Firm Securities and any Optional
Securities have been duly and validly authorized and, when the Firm
Securities are issued and delivered pursuant to this Agreement and the
Pricing Agreement with respect to such Designated Securities, and in the
case of any Contract Securities, pursuant to Delayed Delivery Contracts (as
defined in Section 3 hereof) with respect to such Contract Securities, and
in the case of any Optional Securities, pursuant to Over-allotment Options
(as defined in Section 3 hereof) with respect to such Securities, such
Designated Securities will be duly and validly issued and fully paid and
nonassessable; and the Designated Securities conform to the description
thereof contained in the Registration Statement and will conform to the
description thereof contained in the Prospectus as amended or supplemented
with respect to such Designated Securities.]
6
<PAGE>
[(-) INSERT IF PREFERRED STOCK--The Firm Securities and any Optional
Securities have been duly and validly authorized and, when the Firm
Securities are issued and delivered pursuant to this Agreement and the
Pricing Agreement with respect to such Designated Securities, and in the
case of any Contract Securities, pursuant to Delayed Delivery Contracts (as
defined in Section 3 hereof) with respect to such Contract Securities, and
in the case of any Optional Securities, pursuant to Over-allotment Options
(as defined in Section 3 hereof) with respect to such Securities, such
Designated Securities will be duly and validly issued and fully paid and
nonassessable and will have the rights set forth in the Company's
Certificate of Incorporation, as amended, including the applicable
certificate of designations filed under Section 151 of the General
Corporation Law of the State of Delaware (the "Certificate of
Designations") and which will be timely filed; the Designated Securities
will conform to the description thereof in the Prospectus as amended or
supplemented with respect to such Designated Securities.]
[(-) INSERT IF WARRANTS--The Firm Securities and any Optional
Securities have been duly and validly authorized and, when the Firm
Securities are issued and delivered pursuant to this Agreement and the
Pricing Agreement with respect to such Designated Securities, and in the
case of any Contract Securities, pursuant to Delayed Delivery Contracts (as
defined in Section 3 hereof) with respect to such Contract Securities, and
in the case of any Optional Securities, pursuant to Over-allotment Options
(as defined in Section 3 hereof) with respect to such Securities and duly
executed by the proper officers of the Company and authenticated by the
Warrant Agent under the Warrant Agreement, such Designated Securities will
be duly and validly issued and will constitute valid, legal and binding
obligations of the Company, enforceable against the Company in accordance
with their terms, subject to (1) bankruptcy, insolvency, reorganization,
and other laws of general applicability relating to or affecting creditors'
rights generally, and (2) general equity principles; such Designated
Securities will be entitled to the benefits provided by the related Warrant
Agreement, which will be substantially in the form filed as an exhibit to
the Registration Statement; and each Warrant Agreement has been duly
authorized and, at the Time of Delivery (as defined in Section 4 hereof),
such Warrant Agreement will constitute a valid and legally binding
instrument of the Company, enforceable in accordance with its terms
subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Designated Securities and
the Warrant Agreement will conform to the descriptions thereof in the
Prospectus as amended or supplemented with respect to such Designated
Securities. [IF WARRANTS ARE EXERCISABLE FOR DEBT
7
<PAGE>
SECURITIES, INSERT--, The Debt Securities initially issuable upon exercise
thereof have been duly and validly authorized, and when executed,
authenticated, issued and delivered in accordance with the Warrant
Agreement and the Indenture, upon exercise of the Designated Securities in
accordance with the terms of the Warrant Agreement and at the price therein
provided for, will have been duly executed, authenticated, issued and
delivered 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 provided by the related Indenture which will be
substantially in the form filed as an exhibit to the Registration
Statement; such Indenture has been duly qualified under the Trust Indenture
Act and will constitute a valid and legally binding instrument of the
Company, enforceable in accordance with its terms subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles; and the Debt Securities, the Designated
Securities and the Indenture will conform to the description thereof
contained in the Prospectus as amended or supplemented with respect to such
Designated Securities.] [IF WARRANTS ARE EXERCISABLE FOR PREFERRED STOCK,
INSERT--, The Preferred Stock initially issuable upon exercise thereof has
been duly and validly authorized and reserved for issuance upon such
exercise and such shares, when issued upon such exercise in accordance with
the terms of the Warrant Agreement and at the price therein provided for,
will be duly and validly issued, fully paid and nonassessable and will have
the rights set forth in the Company's Certificate of Incorporation, as
amended, including the applicable certificate of designations (the
"Certificate of Designations") which will be timely filed under Section 151
of the General Corporation Law of the State of Delaware; and the Preferred
Stock will conform to the description thereof in the Prospectus as amended
or supplemented with respect to such Designated Securities.] [IF WARRANTS
ARE EXERCISABLE FOR COMMON STOCK, INSERT--, The Common Stock initially
issuable upon exercise thereof has been duly and validly authorized and
reserved for issuance upon such exercise, and such shares, when issued upon
such exercise in accordance with the terms of the Warrant Agreement and at
the price therein provided for, will be duly and validly issued, fully paid
and nonassessable; and the Common Stock conforms to the description thereof
contained in the Registration Statement and the Designated Securities will
conform to the description thereof contained in the Prospectus as amended
or supplemented with respect to such Designated Securities.]]
[INSERT IF DESIGNATED SECURITIES ARE CONVERTIBLE INTO OR EXCHANGEABLE
FOR COMMON STOCK--The shares of Common Stock issuable upon [conversion]
[exchange] of such Designated Securities have been duly and validly
authorized and reserved for issuance upon such [conversion] [exchange],
and, when issued
8
<PAGE>
and delivered upon such [conversion] [exchange], will be duly and validly
issued and will be fully paid and nonassessable; the stockholders of the
Company have no preemptive rights with respect to such Common Stock
issuable upon [conversion] [exchange] of such Designated Securities; and
such shares of Common Stock conform to the description of the Common Stock
contained in the Registration Statement and the Designated Securities will
conform to the description thereof contained in the Prospectus as amended
or supplemented with respect to such Designated Securities.]
(h) The issue and sale of the Securities and any Securities of the
Company issuable upon conversion, exchange or exercise of the Securities
and the compliance by the Company with all of the provisions of the
Securities, [the Indenture,] [,the Warrant Agreement,] each of the Delayed
Delivery Contracts, this Agreement and any Pricing Agreement and each
Over-allotment Option, if any, and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company is a party or by which
the Company is bound or to which any of the property or assets of the
Company is subject, nor will such action result in any violation of the
provisions of the Certificate of Incorporation or By-Laws of the Company or
any statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its
properties; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Securities and any Securities of the
Company issuable upon conversion, exchange or exercise of the Securities or
the consummation by the Company of the transactions contemplated by this
Agreement or any Pricing Agreement or any Over-allotment Option, [or the
Indenture] [,the Warrant Agreement,] or any Delayed Delivery Contract
except such as have been, or will have been prior to the Time of Delivery,
obtained under the Act [and the Trust Indenture Act] and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities and any Securities of the
Company issuable upon conversion, exchange, or exercise of the Securities
by the Underwriters;
(i) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a
9
<PAGE>
material adverse effect on the consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(j) Coopers & Lybrand L.L.P., who have audited certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(k) The Company and its subsidiaries which are engaged in the
insurance business are, in all material respects, in compliance with, and
conduct, in all material respects, their respective businesses in
conformity with, all applicable insurance laws and regulations; and no
order preventing or suspending the use of the Prospectus or any Preliminary
Prospectus has been issued or threatened by the Superintendent of the Maine
Bureau of Insurance; and
(l) In the event any of the Securities are purchased pursuant to
Delayed Delivery Contracts, each of such Delayed Delivery Contracts has
been duly authorized by the Company and, when executed and delivered by the
Company and the purchaser named therein, will constitute a valid and
legally binding agreement of the Company enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and any
Delayed Delivery Contracts conform to the description thereof in the
Prospectus.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Firm Securities, the several Underwriters propose to offer such Firm
Securities for sale upon the terms and conditions set forth in the Prospectus as
amended or supplemented.
The Company may specify in the Pricing Agreement applicable to any
Designated Securities that the Company thereby grants to the Underwriters the
right (an "Over-allotment Option") to purchase at their election up to [INSERT
IF DEBT SECURITIES--the aggregate principal amount of] [INSERT IF COMMON OR
PREFERRED STOCK OR WARRANTS--the number of], Optional Securities set forth in
such Pricing Agreement, at the terms set forth in the paragraph above, for the
sole purpose of covering over-allotments in the sale of the Firm Securities. Any
such election to purchase Optional Securities may be exercised only by written
notice from the Representatives to the Company, given within a period specified
in the Pricing Agreement, setting forth [INSERT IF DEBT SECURITIES--the
aggregate principal amount of] [INSERT IF COMMON OR PREFERRED STOCK OR WARRANTS-
- -the aggregate number of], Optional Securities to be
10
<PAGE>
purchased and the date on which such Optional Securities are to be delivered, as
determined by the Representatives but in no event earlier than the First Time of
Delivery (as defined in Section 4 hereof) or, unless the Representatives and the
Company otherwise agree in writing, earlier than or later than the respective
number of business days after the date of such notice set forth in such Pricing
Agreement.
The [INSERT IF DEBT SECURITIES--aggregate principal amount of] [INSERT IF
COMMON OR PREFERRED STOCK OR WARRANTS--number of] Optional Securities to be
added to the number of Firm Securities to be purchased by each Underwriter as
set forth in Schedule I to the Pricing Agreement applicable to such Designated
Securities shall be, in each case, [INSERT IF DEBT SECURITIES--the aggregate
principal amount of] [INSERT IF COMMON OR PREFERRED STOCK OR WARRANTS--the
number of] Optional Securities which the Company has been advised by the
Representatives have been attributed to such Underwriter, provided that, if the
Company has not been so advised, [INSERT IF DEBT SECURITIES--the aggregate
principal amount of] [INSERT IF COMMON OR PREFERRED STOCK OR WARRANTS--the
number of] Optional Securities to be so added shall be, in each case, that
proportion of Optional Securities which [INSERT IF DEBT SECURITIES--the
aggregate principal amount of] [INSERT IF COMMON OR PREFERRED STOCK OR WARRANTS-
- -the number of] Firm Securities to be purchased by such Underwriter under such
Pricing Agreement bears to the aggregate [INSERT IF DEBT SECURITIES--aggregate
principal amount of] [INSERT IF COMMON OR PREFERRED STOCK OR WARRANTS--number
of] of Firm Securities [(rounded as the Representatives may determine to the
nearest 100 shares)]. The total [INSERT IF DEBT SECURITIES--aggregate principal
amount of] [INSERT IF COMMON OR PREFERRED STOCK OR WARRANTS--number of]
Designated Securities to be purchased by all the Underwriters pursuant to such
Pricing Agreement shall be the aggregate [INSERT IF DEBT SECURITIES--aggregate
principal amount of] [INSERT IF COMMON OR PREFERRED STOCK OR WARRANTS--number
of] Firm Securities set forth in Schedule I to such Pricing Agreement plus the
aggregate number of the Optional Securities which the Underwriters elect to
purchase.
The Company may specify in Schedule II to the Pricing Agreement applicable
to any Designated Securities that the Underwriters are authorized to solicit
offers to purchase Designated Securities from the Company pursuant to delayed
delivery contracts (herein called "Delayed Delivery Contracts"), substantially
in the form of Annex III attached hereto but with such changes therein as the
Representatives and the Company may authorize or approve. If so specified, the
Underwriters will endeavor to make such arrangements, and as compensation
therefor the Company will pay to the Representatives, for the accounts of the
Underwriters, at the Time of Delivery (as defined in Section 4 hereof), such
commission, if any, as may be set forth in such Pricing Agreement. Delayed
Delivery Contracts, if any, are to be with investors of the types described in
the Prospectus and subject to other conditions therein
11
<PAGE>
set forth. The Underwriters will not have any responsibility with respect to the
validity or performance of any Delayed Delivery Contracts.
The [INSERT IF DEBT SECURITIES--aggregate principal amount][INSERT IF
COMMON OR PREFERRED STOCK OR WARRANTS--number] of Contract Securities to be
deducted from the [INSERT IF DEBT SECURITIES--aggregate principal amount]
[INSERT IF COMMON OR PREFERRED STOCK OR WARRANTS--number] of Designated
Securities to be purchased by each Underwriter as set forth in Schedule I to the
Pricing Agreement applicable to such Designated Securities shall be, in each
case, the [INSERT IF DEBT SECURITIES--aggregate principal amount] [INSERT IF
COMMON OR PREFERRED STOCK OR WARRANTS--number] of Contract Securities which the
Company has been advised by the Representatives have been attributed to such
Underwriter, provided that, if the Company has not been so advised, the amount
of Contract Securities to be so deducted shall be, in each case, that proportion
of Contract Securities which the [INSERT IF DEBT SECURITIES--aggregate principal
amount] [INSERT IF COMMON OR PREFERRED STOCK OR WARRANTS--number] of Designated
Securities to be purchased by such Underwriter under such Pricing Agreement
bears to the total [INSERT IF DEBT SECURITIES--aggregate principal amount]
[INSERT IF COMMON OR PREFERRED STOCK OR WARRANTS--number] of the Designated
Securities (rounded as the Representatives may determine). The total [INSERT IF
DEBT SECURITIES--aggregate principal amount] [INSERT IF COMMON OR PREFERRED
STOCK OR WARRANTS--number] of Underwriters' Securities to be purchased by all
the Underwriters pursuant to such Pricing Agreement shall be the total [INSERT
IF DEBT SECURITIES--aggregate principal amount] [INSERT IF COMMON OR PREFERRED
STOCK OR WARRANTS--number] of Designated Securities set forth in Schedule I to
such Pricing Agreement less the [INSERT IF DEBT SECURITIES--principal amount]
[INSERT IF COMMON OR PREFERRED STOCK OR WARRANTS--number] of the Contract
Securities. The Company will deliver to the Representatives not later than 3:30
p.m., New York City time, on the third business day preceding the Time of
Delivery specified in the applicable Pricing Agreement (or such other time and
date as the Representatives and the Company may agree upon in writing) a written
notice setting forth the [INSERT IF DEBT SECURITIES--aggregate principal amount]
[INSERT IF COMMON OR PREFERRED STOCK OR WARRANTS--number] of Contract
Securities.
4. Certificates for the Firm Securities and the Optional Securities, if
any, to be purchased by each Underwriter pursuant to the Pricing Agreement
relating thereto, in definitive form to the extent practicable, and in such
authorized denominations and registered in such names as the Representatives may
request upon at least forty-eight hours' prior notice to the Company, shall be
delivered by or on behalf of the Company to the Representatives for the account
of such Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor by the method specified in such Pricing Agreement, (i)
with respect to the Firm Securities, all at the place and time and date
specified in
12
<PAGE>
such Pricing Agreement or at such other place and time and date as the
Representatives and the Company may agree upon in writing, such time and date
being herein called the "First Time of Delivery" and (ii) with respect to the
Optional Securities, if any, on the time and date specified by the
Representatives in the written notice given by the Representatives of the
Underwriters' election to purchase such Optional Securities, or at such other
time and date as the Representatives and the Company may agree upon in writing,
such time and date, if not the First Time of Delivery, herein called the "Second
Time of Delivery." Each such time and date for delivery is herein called a "Time
of Delivery." "New York Business Day" shall mean each Monday, Tuesday,
Wednesday, Thursday, and Friday which is not a day on which banking institutions
in New York are generally authorized or obligated by law or executive order to
close.
Concurrently with the delivery of and payment for the Underwriters'
Securities, the Company will deliver to the Representatives for the accounts of
the Underwriters funds payable to the order of the party designated, and in the
method specified, in the Pricing Agreement relating to such Securities in the
amount of any compensation payable by the Company to the Underwriters in respect
of any Delayed Delivery Contracts as provided in Section 3 hereof and the
Pricing Agreement relating to such Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended and supplemented in relation
to the applicable Designated Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Securities or, if applicable, such
earlier time as may be required by Rule 424(b); to make no further
amendment or any supplement to the Registration Statement or Prospectus as
amended or supplemented after the date of the Pricing Agreement relating to
such Securities and prior to the Time of Delivery for such Securities which
amendment or supplement shall be disapproved by the Representatives for
such Securities promptly after reasonable notice thereof; to advise the
Representatives promptly of any such amendment or supplement after such
Time of Delivery and furnish the Representatives with copies thereof; to
file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required in connection with the offering or
sale of such Securities, and during such same period to advise the
Representatives, promptly after it receives notice thereof, of
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<PAGE>
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 [and any [shares of Common
Stock] [INSERT OTHER SECURITIES INTO WHICH CONVERTIBLE, EXERCISABLE OR
EXCHANGEABLE FOR] issuable upon conversion, exercise or exchange of the
Designated Securities], of the suspension of the qualification of such
Securities [and any [shares of Common Stock] [INSERT OTHER SECURITIES INTO
WHICH CONVERTIBLE, EXERCISABLE OR EXCHANGEABLE FOR] issuable upon
conversion or exercise of or exchange of the Designated Securities] for
offering or sale in any jurisdiction, of the initiation or threatening of
any proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the issuance
of any such stop order or of any such order preventing or suspending the
use of any prospectus relating to the Securities or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities [and any
[shares of Common Stock] [INSERT OTHER SECURITIES INTO WHICH CONVERTIBLE OR
ARE EXCHANGEABLE FOR] issuable upon conversion, exercise or exchange of the
Designated Securities] for offering and sale under the securities laws of
such jurisdictions as the Representatives may request and to comply with
such laws so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete the
distribution of such Securities [and any [shares of Common Stock] [INSERT
OTHER SECURITIES INTO WHICH CONVERTIBLE OR ARE EXCHANGEABLE FOR] issuable
upon conversion, exercise or exchange of the Designated Securities],
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) Prior to 10:00 A.M., New York City time, on the New York Business
Day next succeeding the date of this Agreement, and thereafter, to furnish
the Underwriters with copies of the Prospectus as amended or supplemented
in such quantities as the Representatives may from time to time reasonably
request, and, if the delivery of a prospectus is required at any time in
connection with the offering or sale of the Securities and if at such time
any event shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made
14
<PAGE>
when such Prospectus is delivered, not misleading, or, if for any other
reason it shall be necessary during such same period to amend or supplement
the Prospectus or to file under the Exchange Act any document incorporated
by reference in the Prospectus in order to comply with the Act, [or] the
Exchange Act [or the Trust Indenture Act], to notify the Representatives
and upon their request to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in securities as many
copies as the Representatives may from time to time reasonably request of
an amended Prospectus or a supplement to the Prospectus which will correct
such statement or omission or effect such compliance;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)),
an earnings statement of the Company and its subsidiaries (which need not
be audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of the
Company, Rule 158); and
(e) [INSERT IF DEBT SECURITIES--During the period beginning from the
date hereof and continuing to and including the earlier of (i) the
termination of trading restrictions for such Designated Securities and (ii)
the Time of Delivery for such Designated Securities, not to offer, sell,
contract to sell or otherwise dispose of any securities of the Company
(other than pursuant to employee stock option plans existing, or on the
conversion or exchange of convertible or exchangeable securities
outstanding on the date of the Pricing Agreement) which are substantially
similar to the Designated Securities and which mature more than one year
after the related Time of Delivery [or to the--[INSERT OTHER SECURITIES
INTO WHICH CONVERTIBLE, EXERCISABLE OR EXCHANGEABLE FOR] issuable upon
conversion, exercise or exchange of the Designated Securities], without
your prior written consent.]
[(f) INSERT IF THE DESIGNATED SECURITIES ARE CONVERTIBLE INTO COMMON
STOCK--To reserve and keep available at all times, free of preemptive
rights, shares of Common Stock for the purpose of enabling the Company to
satisfy any obligations to issue shares of Common Stock upon conversion of
the Designated Securities.]
[(g) INSERT IF REQUIRED BY THE APPLICABLE PRICING AGREEMENT--To use
its best efforts to list, subject to notice of issuance, the Designated
Securities [and shares of Common Stock issuable upon conversion of the
Designated Securities] on the New York Stock Exchange or such other
exchange on which the Company's Common Stock is then listed.]
15
<PAGE>
[(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.
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Pricing Agreement, any
Indenture, any Warrant Agreement, any Delayed Delivery Contracts, and Blue Sky
and Legal Investment Memoranda and any other documents in connection with the
offering, purchase, sale and delivery of the Securities [and any [shares of
Common Stock] [INSERT OTHER SECURITIES INTO WHICH CONVERTIBLE, EXERCISABLE OR
EXCHANGEABLE FOR] issuable upon conversion, exercise or exchange of the
Designated Securities]; (iii) all expenses in connection with the qualification
of the Securities [and any [shares of Common Stock] [INSERT OTHER SECURITIES
INTO WHICH CONVERTIBLE, EXERCISABLE OR EXCHANGEABLE FOR] issuable upon
conversion, exercise or exchange of the Designated Securities] for offering and
sale under state securities laws as provided in Section 5(b) hereof, including
the fees and disbursements of counsel for the Underwriters in connection with
such qualification and in connection with the Blue Sky and legal investment
surveys; (iv) any fees charged by securities rating services for rating the
Securities [and any [shares of Common Stock] [INSERT OTHER SECURITIES INTO WHICH
CONVERTIBLE, EXERCISABLE OR EXCHANGEABLE FOR] issuable upon conversion, exercise
or exchange of the Designated Securities]; (v) any filing fees incident to any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Securities; (vi) the cost of preparing the Securities
[and any [shares of Common Stock] [INSERT OTHER SECURITIES INTO WHICH
CONVERTIBLE, EXERCISABLE OR EXCHANGEABLE FOR] issuable upon conversion, exercise
or exchange of the Designated Securities]; (vii) the fees and expenses of any
Trustee, any Warrant Agent, any Registrar, any Transfer Agent, Dividend
Disbursing Agent, or any Calculation Agent and any agent of any Trustee, Warrant
Agent, Registrar, Transfer Agent, Dividend Disbursing Agent, or Calculation
Agent and the fees and disbursements of counsel for any such persons in
connection with any Indenture, any Warrant Agent Agreement, any Calculation
Agent Agreement and the Securities; and
16
<PAGE>
(viii) all other costs and expenses incident to the performance of the Company's
obligations hereunder and under any Over-allotment Options and under any Delayed
Delivery Contracts which are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in this Section,
Section 8 and Section 11 hereof, the Underwriters will pay all of their own
costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Securities by them, and any advertising expenses connected
with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities under
the Pricing Agreement relating to such Designated Securities shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of each Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed in all material respects all of its obligations hereunder theretofore
to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; if the Company has elected to rely upon Rule
462(b), the Rule 462(b) Registration Statement shall have become effective
by 10:00 P.M., Washington, D.C. time, on the date of this Agreement; no
stop order suspending the effectiveness of the Registration Statement or
any part thereof shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and all requests
for additional information on the part of the Commission shall have been
complied with to the Representatives' reasonable satisfaction;
(b) Sullivan & Cromwell, counsel for the Underwriters, shall have
furnished to the Representatives such opinion or opinions, dated each Time
of Delivery for such Designated Securities, with respect to the
incorporation of the Company, the validity of [the Indenture,] [,the
Warrant Agreement,] the Designated Securities [and any Securities issuable
upon conversion, exchange or exercise of the Designated Securities], the
Delayed Delivery Contracts, if any, the Registration Statement, the
Prospectus as amended or supplemented and other related matters as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
17
<PAGE>
(c) Kevin J. Tierney, Senior Vice President, Secretary and General
Counsel of the Company, shall have furnished to the Representatives his
written opinion, dated each Time of Delivery for such Designated
Securities, in form and substance satisfactory to the Representatives, to
the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus as amended or supplemented;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus as amended or supplemented and all of the issued shares
of capital stock of the Company have been duly and validly authorized
and issued and are fully paid and nonassessable;
(iii) The Company is qualified to do business, and is in good
standing, as a foreign corporation under the laws of each jurisdiction
in which the business conducted by it requires such qualification or,
if not so qualified and in good standing in any such jurisdiction,
such failure to be so qualified and in good standing, as of the date
of this opinion, will not result in liabilities material to the
business of the Company;
(iv) Each subsidiary of the Company has been duly organized, and
is subsisting and in good standing as a corporation under the laws of
its jurisdiction of incorporation, and all of the issued shares of
capital stock of each such subsidiary have been duly and validly
authorized and issued, are fully paid and nonassessable, and, to the
best knowledge of such counsel, are owned directly or indirectly by
the Company, free and clear of all liens, encumbrances, equities or
claims;
(v) To the best of such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is
a party or of which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the consolidated financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries; and, to the best of such counsel's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
18
<PAGE>
(vi) This Agreement and the Pricing Agreement with respect to the
Designated Securities have been duly authorized, executed and
delivered by the Company;
(vii) [(-) INSERT IF DEBT SECURITIES--The Designated Securities
have been duly authorized, by requisite corporate action on the part
of the Company, and the Designated Securities, when executed and
authenticated in accordance with the terms of the Indenture and
delivered to and paid for by the Underwriters in accordance with the
terms of the Underwriting Agreement, will be valid and binding
obligations of the Company entitled to the benefit of the Indenture
and enforceable against the Company in accordance with their terms,
except to the extent that the enforcement thereof may be limited by
(1) bankruptcy, insolvency, reorganization, fraudulent transfer,
moratorium or other similar laws now or hereafter in effect relating
to or affecting creditors' rights generally, (2) general principles of
equity (regardless of whether enforcement is considered in a
proceeding at law or equity), (3) requirements that a claim with
respect to any Debt Securities denominated other than in United States
dollars (or a judgment denominated other than in United States dollars
in respect of such claim) be converted into United States dollars at a
rate of exchange prevailing on a date determined pursuant to
applicable law, and (4) governmental authority to limit, delay or
prohibit the making of payments outside the United States or in
foreign currencies or composite currencies or currency units; and the
Designated Securities conform in all material respects to the
description thereof contained in the Registration Statement and
Prospectus as amended or supplemented with respect to such Designated
Securities.]
[(-) INSERT IF COMMON STOCK--The Designated Securities have been
duly authorized and, when issued and delivered to and paid for by the
Underwriters in accordance with the terms of the Underwriting
Agreement, will be validly issued, fully paid and nonassessable; and
the Designated Securities conform in all material respects to the
description thereof contained in the Registration Statement and in the
Prospectus as amended or supplemented with respect to such Designated
Securities.]
[(-) INSERT IF PREFERRED STOCK--The Designated Securities have
been duly authorized and, when issued and delivered to and paid for by
the Underwriters in accordance with the terms of the Underwriting
Agreement, will be validly issued, fully paid and nonassessable and
will have the rights set forth in the Company's Certificate of
Incorporation, as amended, including the Certificate of Designations;
the Designated Securities conform in all material respects to
19
<PAGE>
the description thereof contained in the Registration Statement and
Prospectus as amended or supplemented with respect to such Designated
Securities.]
[(-) The Certificate of Designations has been filed with the
Secretary of State of the State of Delaware in accordance with
Delaware General Corporation Law.]
[(-) INSERT IF WARRANTS--The Designated Securities have been duly
authorized, executed and delivered by the Company and, assuming due
countersignature thereof by the Warrant Agent, such Designated
Securities constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms
(including the terms of the Warrant Agreement), except to the extent
that enforcement thereof may be limited by (1) bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium or other similar laws
now or hereafter in effect relating to or affecting creditors' rights
generally and (2) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity); and
the Designated Securities and the Warrant Agreement conform in all
material respects to the descriptions thereof in the Registration
Statement and Prospectus as amended or supplemented with respect to
such Designated Securities. [IF WARRANTS ARE EXERCISABLE FOR DEBT
SECURITIES, INSERT--, The Debt Securities initially issuable upon
exercise thereof have been duly authorized, and when executed,
authenticated, issued and delivered in accordance with the Warrant
Agreement and the Indenture, upon exercise of the Designated
Securities in accordance with the terms of the Warrant Agreement and
at the price therein provided for, will have been duly executed,
authenticated, issued and delivered and will be valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except to the extent that enforcement
thereof may be limited by (1) bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium or other similar laws now or hereafter
in effect relating to or affecting creditors' rights generally, (2)
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity), (3) requirements that
a claim with respect to any Debt Securities denominated other than in
United States dollars (or a judgment denominated other than in United
States dollars in respect of such claim) be converted into United
States dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law, and (4) governmental authority to limit,
delay or prohibit the making of payments outside the United States or
in foreign currencies or composite currencies or currency units; and
entitled to the benefits provided by the related Indenture which is
substantially in the form filed
20
<PAGE>
as an exhibit to the Registration Statement; and the Debt Securities,
the Designated Securities and the Indenture conform in all material
respects to the description thereof contained in the Registration
Statement and Prospectus as amended or supplemented with respect to
such Designated Securities.] [IF WARRANTS ARE EXERCISABLE FOR
PREFERRED STOCK, INSERT--, The Preferred Stock initially issuable upon
exercise thereof has been duly authorized and reserved for issuance
upon such exercise and such shares, when issued upon such exercise in
accordance with the terms of the Warrant Agreement and at the price
therein provided for, will be duly authorized and issued and will be
fully paid and nonassessable and will have the rights set forth in the
Company's Certificate of Incorporation, as amended, including the
Certificate of Designations; and the Preferred Stock conforms in all
material respects to the description thereof in the Registration
Statement and Prospectus as amended or supplemented with respect to
such Designated Securities.] [IF WARRANTS ARE EXERCISABLE FOR COMMON
STOCK, INSERT--, The Common Stock initially issuable upon exercise
thereof has been duly authorized and reserved for issuance upon such
exercise, and such shares, when issued upon such exercise in
accordance with the terms of the Warrant Agreement and at the price
therein provided for, will be duly authorized and issued and will be
fully paid and nonassessable; and the Common Stock conforms in all
material respects to the description thereof contained in the
Registration Statement and Prospectus and the Designated Securities
will conform in all material respects to the description thereof
contained in the Registration Statement and Prospectus as amended or
supplemented with respect to such Designated Securities.]]
[INSERT IF DESIGNATED SECURITIES ARE CONVERTIBLE INTO OR
EXCHANGEABLE FOR COMMON STOCK--The shares of Common Stock issuable
upon [conversion] [exchange] of such Designated Securities in
accordance with the terms of the Indenture and the Designated
Securities have been duly authorized and reserved for issuance upon
such [conversion] [exchange], and, when issued and delivered upon such
[conversion] [exchange], will be duly authorized and validly issued
and will be fully paid and non-assessable; the stockholders of the
Company have no preemptive rights with respect to such Common Stock
issuable upon [conversion] [exchange] of such Designated Securities;
and such shares of Common Stock conform in all material respects to
the description of the Common Stock contained in the Registration
Statement and the Prospectus and the Designated Securities will
conform in all material respects to the description thereof contained
in the Registration Statement and Prospectus as amended or
supplemented with respect to such Designated Securities.]
21
<PAGE>
(viii) [IF DEBT SECURITIES OR WARRANTS--INSERT AS APPLICABLE--The
[Indenture] [Warrant Agreement] has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding
agreement, enforceable against the Company in accordance with its
terms, except to the extent that the enforcement thereof may be
limited by (1) bankruptcy, insolvency, reorganization, fraudulent
transfer, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally, (2) general principles of
equity (regardless of whether enforcement is considered in a
proceeding at law or equity), (3) requirements that a claim with
respect to any Debt Securities denominated other than in United States
dollars (or a judgment denominated other than in United States dollars
in respect of such claim) be converted into United States dollars at a
rate of exchange prevailing on a date determined pursuant to
applicable law, and (4) governmental authority to limit, delay or
prohibit the making of payments outside the United States or in
foreign currencies or composite currencies or currency units; [If Debt
Securities-and the Indenture has been duly qualified under the Trust
Indenture Act;]
[INSERT IF DESIGNATED SECURITIES ARE COVERED BY DELAYED DELIVERY
CONTRACTS--The Contract Securities when [INSERT IF DEBT SECURITIES OR
WARRANTS--authenticated, executed,] issued and delivered pursuant to
the [INSERT IF DEBT SECURITIES--Indenture and] [INSERT IF WARRANTS--
Warrant Agreement and] the Delayed Delivery Contracts and paid for in
accordance with the Delayed Delivery Contracts [INSERT IF COMMON OR
PREFERRED--will be duly authorized, fully paid and non-assessable,]
[INSERT IF DEBT SECURITIES OR WARRANTS--will constitute valid and
binding obligations of the Company [INSERT IF DEBT SECURITIES--
entitled to the benefits provided by the Indenture], [INSERT IF DEBT
SECURITIES OR WARRANTS--and enforceable in accordance with their
terms, [INSERT IF WARRANTS--(including the terms of the Warrant
Agreement)], except to the extent that enforcement thereof may be
limited by (1) bankruptcy, insolvency, reorganization, fraudulent
transfer, moratorium and other similar laws now or hereafter in effect
relating to or affecting creditors' rights generally, (2) general
principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity), (3) requirements that
a claim with respect to any Debt Securities denominated other than in
United States dollars (or a judgment denominated other than in United
States dollars in respect of such claim) be converted into United
States dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law, and (4) governmental authority to limit,
delay or prohibit the making of payments outside the United States or
in foreign currencies or composite currencies or currency units; and
22
<PAGE>
the Designated Securities [INSERT IF DEBT SECURITIES--and the
Indenture] [INSERT IF WARRANTS--and the Warrant Agreement] conform in
all material respects to the descriptions thereof in the Registration
Statement and Prospectus as amended or supplemented relating to the
Designated Securities.
(ix) The issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the Designated
Securities, [the Indenture,] [the Warrant Agreement,] each of the
Delayed Delivery Contracts, if any, any Over-allotment Options, this
Agreement and the Pricing Agreement with respect to the Designated
Securities and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Company is
a party or by which the Company is bound or to which any of the
property or assets of the Company is subject, nor will such actions
result in any violation of the provisions of the Certificate of
Incorporation or By-Laws of the Company or any statute or any order,
rule or regulation known to such counsel of any court or governmental
agency or body having jurisdiction over the Company or any of its
properties;
(x) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required for the issue and sale of the Designated Securities [and
any [shares of Common Stock] [INSERT OTHER SECURITIES INTO WHICH
CONVERTIBLE, EXERCISABLE OR EXCHANGEABLE FOR] issuable upon
conversion, exercise or exchange of the Securities] or the
consummation by the Company of the transactions contemplated by this
Agreement or such Pricing Agreement or the Indenture or any of such
Delayed Delivery Contracts or any Over-allotment Options, except such
as have been obtained under the Act and the Trust Indenture Act and
such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the
Designated Securities by the Underwriters;
(xi) The documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; and he has no reason to believe that any of such
23
<PAGE>
documents, when they became effective or were so filed, as the case
may be, contained, in the case of a registration statement which
became effective under the Act, an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or, in the
case of other documents which were filed under the Act or the Exchange
Act with the Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such documents were so filed, not misleading;
(xii) The Registration Statement and the Prospectus as amended or
supplemented and any further amendments and supplements thereto made
by the Company prior to the Time of Delivery for the Designated
Securities (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) comply as
to form in all material respects with the requirements of the Act and
[If Debt Securities-the Trust Indenture Act] and the rules and
regulations thereunder; and
(xiii) In the event any of the Designated Securities are to be
purchased pursuant to Delayed Delivery Contracts, each of such Delayed
Delivery Contracts has been duly authorized, executed and delivered by
the Company and, assuming such Delayed Delivery Contracts have been
duly authorized, executed and delivered by the purchaser named
therein, constitutes a valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except
to the extent that enforcement thereof may be limited by (1)
bankruptcy, insolvency, reorganization, fraudulent transfer,
moratorium or other similar laws now or hereafter in effect relating
to creditors' rights generally, (2) general principles of equity
(regardless of whether enforcement is considered in a proceeding at
law or in equity), (3) requirements that a claim with respect to any
Debt Securities denominated other than in United States dollars (or a
judgment denominated other than in United States dollars in respect of
such claim) be converted into United States dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law,
and (4) governmental authority to limit, delay or prohibit the making
of payments outside the United States or in foreign currencies or
composite currencies or currency units; and any Delayed Delivery
Contracts conform in all material respects to the description thereof
in the Registration Statement and Prospectus as amended or
supplemented.
In addition, such counsel shall state that he has no reason to believe
that, as of its effective date, the Registration
24
<PAGE>
Statement or any further amendment thereto made by the Company prior to
such Time of Delivery (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion)
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or that, as of its date, the Prospectus
as amended or supplemented or any further amendment or supplement thereto
made by the Company prior to such Time of Delivery (other than the
financial statements and related schedules therein, as to which such
counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein, in light of the circumstances in which they were made,
not misleading or that, as of such Time of Delivery, either the
Registration Statement or the Prospectus as amended or supplemented or any
further amendment or supplement thereto made by the Company prior to such
Time of Delivery (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) contains an
untrue statement of a material fact or omits to state a material fact
necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading; and he shall state that he does not
know of any amendment to the Registration Statement 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) Skadden, Arps, Slate, Meagher & Flom, special counsel for the
Company, shall have furnished to the Representatives their written opinion,
dated each Time of Delivery for such Designated Securities, in form and
substance satisfactory to the Representatives, to the effect that:
(i) [IF DEBT SECURITIES OR WARRANTS--INSERT AS APPLICABLE--The
[Indenture] [Warrant Agreement] has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement,
enforceable against the Company in accordance with its terms, except
to the extent that enforcement thereof may be limited by (1)
bankruptcy, insolvency, reorganization, fraudulent transfer,
moratorium or other similar laws now or hereafter in effect relating
to or affecting creditors' rights generally, (2) general principles of
equity (regardless of whether enforceability is considered in a
proceeding at law or in equity), (3) requirements that a claim with
respect to any Debt Securities denominated other than in United States
dollars (or a judgment denominated other than in United States
25
<PAGE>
dollars in respect of such claim) be converted into United States
dollars at a rate of exchange prevailing on a date determined pursuant
to applicable law, and (4) governmental authority to limit, delay or
prohibit the making of payments outside the United States or in
foreign currencies or composite currencies or currency units.
[(-) INSERT IF DEBT SECURITIES--The sale and issuance of the
Designated Securities have been duly authorized by requisite corporate
action on the part of the Company, and the Designated Securities, when
executed and authenticated in accordance with the terms of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of the Underwriting Agreement, will be valid
and binding obligations of the Company entitled to the benefit of the
Indenture and enforceable against the Company in accordance with their
terms, except to the extent that enforcement thereof may be limited by
(1) bankruptcy, insolvency, reorganization, fraudulent transfer,
moratorium or other similar laws now or hereafter in effect relating
to or affecting creditors' rights generally, (2) general principles of
equity (regardless of whether enforceability is considered in a
proceeding at law or equity), (3) requirements that a claim with
respect to any Debt Securities denominated other than in United States
dollars (or a judgment denominated other than in United States dollars
in respect of such claim) be converted into United States dollars at a
rate of exchange prevailing on a date determined pursuant to
applicable law, and (4) governmental authority to limit, delay or
prohibit the making of payments outside the United States or in
foreign currencies or composite currencies or currency units; and the
Designated Securities conform in all material respects to the
description thereof contained in the Registration Statement and
Prospectus as amended or supplemented with respect to such Designated
Securities.]
[(-) INSERT IF COMMON STOCK--The Designated Securities have been
duly authorized and, when issued and delivered to and paid for by the
Underwriters in accordance with the terms of the Underwriting
Agreement, will be validly issued, fully paid and nonassessable; and
the Designated Securities conform in all material respects to the
description thereof contained in the Registration Statement and
Prospectus as amended or supplemented with respect to such Designated
Securities.]
[(-) INSERT IF PREFERRED STOCK--The Designated Securities have
been duly authorized and, when issued and delivered to and paid for by
the Underwriters in accordance with the terms of the Underwriting
Agreement, will be validly issued, fully paid and nonassessable and
will have the rights set
26
<PAGE>
forth in the Company's Certificate of Incorporation, as amended,
including the Certificate of Designations; the Designated Securities
conform in all material respects to the description thereof contained
in the Registration Statement and Prospectus as amended or
supplemented with respect to such Designated Securities.]
[(-) The Certificate of Designations has been filed with the
Secretary of State of the State of Delaware in accordance with
Delaware General Corporation Law.]
[(-) INSERT IF WARRANTS--The Designated Securities have been duly
authorized, executed and delivered by the Company and, assuming due
countersignature thereof by the Warrant Agent, such Designated
Securities will be valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms
(including the terms of the Warrant Agreement), except to the extent
that enforcement thereof may be limited by (1) bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium or other similar laws
now or hereafter in effect relating to or affecting creditors' rights
generally and (2) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity); and
the Designated Securities and the Warrant Agreement conform in all
material respects to the descriptions thereof in the Registration
Statement and Prospectus as amended or supplemented with respect to
such Designated Securities. [IF WARRANTS ARE EXERCISABLE FOR DEBT
SECURITIES, INSERT--, The Debt Securities initially issuable upon
exercise thereof have been duly authorized, and when executed,
authenticated, issued and delivered in accordance with the Warrant
Agreement and the Indenture, upon exercise of the Designated
Securities in accordance with the terms of the Warrant Agreement and
upon payment of the exercise price therefor in accordance with the
terms of the Warrant Agreement, will have been duly executed,
authenticated, issued and delivered and will be valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except to the extent that enforcement
thereof may be limited by (1) bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium or other similar laws now or hereafter
in effect relating to or affecting creditors' rights generally, (2)
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity), (3) requirements that
a claim with respect to any Debt Securities denominated other than in
United States dollars (or a judgment denominated other than in United
States dollars in respect of such claim) be converted into United
States dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law, and (4) governmental authority to limit,
27
<PAGE>
delay or prohibit the making of payments outside the United States or
in foreign currencies or composite currencies or currency units; and
entitled to the benefit of the related Indenture which is
substantially in the form filed as an exhibit to the Registration
Statement; and the Debt Securities, the Designated Securities and the
Indenture conform in all material respects to the description thereof
contained in the Registration Statement and Prospectus as amended or
supplemented with respect to such Designated Securities.] [IF WARRANTS
ARE EXERCISABLE FOR PREFERRED STOCK, INSERT--, The Preferred Stock
initially issuable upon exercise thereof has been duly authorized and
reserved for issuance upon such exercise and such shares, when issued
upon such exercise in accordance with the terms of the Warrant
Agreement and upon payment of the exercise price therefor in
accordance with the terms of the Warrant Agreement, will be duly
authorized and issued and will be fully paid and nonassessable and
will have the rights set forth in the Company's Certificate of
Incorporation, as amended, including the Certificate of Designations;
and the Preferred Stock conforms in all material respects to the
description thereof in the Registration Statement and Prospectus as
amended or supplemented with respect to such Designated Securities.]
[IF WARRANTS ARE EXERCISABLE FOR COMMON STOCK, INSERT--, The Common
Stock initially issuable upon exercise thereof has been duly
authorized and reserved for issuance upon such exercise, and such
shares, when issued upon such exercise in accordance with the terms of
the Warrant Agreement and upon payment of the exercise price therefor
in accordance with the terms of the Warrant Agreement, will be duly
authorized and issued and will be fully paid and nonassessable; and
the Common Stock conforms in all material respects to the description
thereof contained in the Registration Statement and Prospectus and the
Designated Securities will conform in all material respects to the
description thereof contained in the Registration Statement and
Prospectus as amended or supplemented with respect to such Designated
Securities.]]
[INSERT IF DESIGNATED SECURITIES ARE CONVERTIBLE INTO OR
EXCHANGEABLE FOR COMMON STOCK--The shares of Common Stock issuable
upon [conversion] [exchange] of such Designated Securities in
accordance with the terms of the Indenture and the Designated
Securities have been duly authorized and reserved for issuance upon
such [conversion] [exchange], and, when issued and delivered upon such
[conversion] [exchange], will be duly authorized and issued and will
be fully paid and nonassessable; the stockholders of the Company have
no preemptive rights under the Company's Certificate of Incorporation
or Delaware General Corporation Law with respect to such Common Stock
issuable upon [conversion] [exchange] of such Designated Securities;
and
28
<PAGE>
such shares of Common Stock conform in all material respects to the
description of the Common Stock contained in the Registration
Statement and Prospectus and the Designated Securities will conform in
all material respects to the description thereof contained in the
Registration Statement and Prospectus as amended or supplemented with
respect to such Designated Securities.]
[INSERT IF DESIGNATED SECURITIES ARE COVERED BY DELAYED DELIVERY
CONTRACTS--The Contract Securities when [INSERT IF DEBT SECURITIES OR
WARRANTS--authenticated, executed,] issued and delivered pursuant to
the [INSERT IF DEBT SECURITIES--Indenture and] [INSERT IF WARRANTS--
Warrant Agreement and] the Delayed Delivery Contracts and paid for in
accordance with the Delayed Delivery Contracts [INSERT IF COMMON OR
PREFERRED--will be duly authorized, fully paid and nonassessable,]
[INSERT IF DEBT SECURITIES OR WARRANTS--will constitute valid and
binding obligations of the Company [INSERT IF DEBT SECURITIES--
entitled to the benefits provided by the Indenture], [INSERT IF DEBT
SECURITIES OR WARRANTS--and enforceable against the Company in
accordance with their terms [INSERT IF WARRANTS--(including the terms
of the Warrant Agreement)], except to the extent that enforcement,
thereof may be limited by (a) bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium and other similar laws now or
hereafter in effect relating to or affecting creditors' rights
generally, (b) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity), (c)
requirements that a claim with respect to any Debt Securities
denominated other than in United States dollars (or a judgment
denominated other than in United States dollars in respect of such
claim) be converted into United States dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law, and (d)
governmental authority to limit, delay or prohibit the making of
payments outside the United States or in foreign currencies or
composite currencies or currency units;] and the Designated Securities
[INSERT IF DEBT SECURITIES--and the Indenture] [INSERT IF WARRANTS--
and the Warrant Agreement] conform in all material respects to the
descriptions thereof in the Registration Statement and Prospectus as
amended or supplemented relating to the Designated Securities.
(ii) Assuming the due authorization, execution and delivery of
any Delayed Delivery Contract by the purchaser named therein, such
Contract will constitute a valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except
to the extent that enforcement thereof may be limited by (1)
bankruptcy, insolvency, reorganization, fraudulent transfer,
moratorium or other similar laws now or hereafter in effect relating
to
29
<PAGE>
or affecting creditors' rights generally and (2) general principles of
equity (regardless of whether enforcement is considered in a
proceeding at law or in equity).
(e) On the date of the Pricing Agreement for such Designated
Securities and at each Time of Delivery for such Designated Securities,
Coopers & Lybrand L.L.P. shall have furnished to the Representatives a
letter, dated the effective date of the Registration Statement or the date
of the most recent report filed with the Commission containing financial
statements and incorporated by reference in the Registration Statement, if
the date of such report is later than such effective date, and a letter
dated such Time of Delivery, respectively, to the effect set forth in Annex
II hereto, and with respect to such letter dated such Time of Delivery, as
to such other matters as the Representatives may reasonably request and in
form and substance satisfactory to the Representatives;
(f) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or government action, order or decree,
otherwise than as set forth or contemplated in the Prospectus as amended or
supplemented, and (ii) since the respective dates as of which information
is given or incorporated by reference in the Prospectus as amended or
supplemented there shall not have been any material change in the capital
stock or long-term debt of the Company or any of its subsidiaries or any
change, or any development involving a prospective change, in or affecting
the general affairs, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries considered as
a whole, otherwise than as set forth or contemplated in the Prospectus as
amended or supplemented, the effect of which, in any such case described in
Clause (i) or (ii), is in the judgment of the Representatives so material
and adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Underwriters' Securities on the
terms and in the manner contemplated in the Prospectus as amended or
supplemented;
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities or preferred stock by any
"nationally recognized statistical rating organization," as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act and
(ii) no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its
30
<PAGE>
rating of any of the Company's debt securities or preferred stock;
(h) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally
on the New York Stock Exchange; (ii) a general moratorium on commercial
banking activities in New York declared by either Federal or New York state
authorities; or (iii) the outbreak or material escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war, if the effect of any such event specified in
this Clause (iii) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Firm Securities or the Optional Securities, or both, on the
terms and in the manner contemplated by the Prospectus as amended or
supplemented; and
(i) The Company shall have furnished or caused to be furnished to the
Representatives at each Time of Delivery for the Designated Securities a
certificate or certificates of officers of the Company satisfactory to the
Representatives as to the accuracy of the representations and warranties of
the Company herein at and as of each Time of Delivery, as to the
performance by the Company of all of its obligations hereunder to be
performed at or prior to each Time of Delivery, as to the matters set forth
in subsections (a) and (e) of this Section and as to such other matters as
the Representatives may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein (i) in the case of the
Registration Statement, not misleading and (ii) in the case of the Prospectus,
in the light of the circumstances under which they were made, not misleading,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an
31
<PAGE>
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Securities, or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to such
Securities; and provided, further, that the Company shall not be liable to any
Underwriter under the indemnity agreement in this subsection (a) with respect to
any Preliminary Prospectus to the extent that any such loss, claim, damage or
liability of such Underwriter results from the fact such Underwriter sold
Securities to a person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus (excluding documents
incorporated by reference) or of the Prospectus as then amended or supplemented
(excluding documents incorporated by reference) in any case where such delivery
is required by the Act if the Company has previously furnished copies thereof to
such Underwriter and the loss, claim, damage or liability of such Underwriter
results from an untrue statement or omission of a material fact contained in the
Preliminary Prospectus which was corrected in the Prospectus (or the Prospectus
as amended or supplemented).
(b) Each Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Securities, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein (i) in the case of the Registration Statement, not misleading and (ii)
in the case of any Prospectus, in the light of the circumstances under which
they were made, not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
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<PAGE>
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation.
(d) If the indemnification provided for in this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters of the Designated Securities
on the other from the offering of the Designated Securities to which such loss,
claim, damage or liability (or action in respect thereof) relates. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters of the Designated
Securities on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and such Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from such offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by such Underwriters.
The relative fault shall be determined by reference to, among other things,
whether
33
<PAGE>
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company on the one hand or such Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this subsection
(d) were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the applicable Designated Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the Underwriters
of Designated Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to such
Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Firm Securities or Optional Securities which it has agreed to purchase under the
Pricing Agreement relating to such Firm Securities or Optional Securities, the
Representatives may in their discretion arrange for themselves or another party
or other parties to purchase such Underwriters' Securities on the terms
contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such Firm
Securities or Optional Securities, then the Company
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<PAGE>
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to the Representatives to
purchase such Firm Securities or Optional Securities on such terms. In the event
that, within the respective prescribed period, the Representatives notify the
Company that they have so arranged for the purchase of such Firm Securities or
Optional Securities, or the Company notifies the Representatives that it has so
arranged for the purchase of such Firm Securities or Optional Securities, the
Representatives or the Company shall have the right to postpone the Time of
Delivery for such Firm Securities or Optional Securities for a period of not
more than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Company agrees
to file promptly any amendments or supplements to the Registration Statement or
the Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such Designated
Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Firm Securities or Optional Securities, as the case may be, of a defaulting
Underwriter or Underwriters by the Representatives and the Company as provided
in subsection (a) above, the aggregate [number] [principal amount] of such Firm
Securities or Optional Securities, as the case may be, which remains unpurchased
does not exceed one-eleventh of the aggregate [principal amount] of the Firm
Securities or Optional Securities, as the case may be, then the Company shall
have the right to require each non-defaulting Underwriter to purchase the
[number] [principal amount] of Firm Securities or Optional Securities, as the
case may be, which such Underwriter agreed to purchase under the Pricing
Agreement relating to such Designated Securities and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata share (based on the
[number] [principal amount] of Firm Securities or Optional Securities, as the
case may be, which such Underwriter agreed to purchase under such Pricing
Agreement) of the Firm Securities or Optional Securities, as the case may be, of
such defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Firm Securities or Optional Securities, as the case may be, of a defaulting
Underwriter or Underwriters by the Representatives and the Company as provided
in subsection (a) above, the aggregate [number] [principal amount] of Firm
Securities or Optional Securities, as the case may be, which remains unpurchased
exceeds one-eleventh of the aggregate [number] [principal amount] of the Firm
Securities or Optional Securities,
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<PAGE>
as the case may be, as referred to in subsection (b) above, or if the Company
shall not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Firm Securities or Optional Securities,
as the case may be, of a defaulting Underwriter or Underwriters, then the
Pricing Agreement relating to such Designated Securities shall thereupon
terminate, without liability on the part of any non-defaulting Underwriter or
the Company, except for the expenses to be borne by the Company and the
Underwriters as provided in Section 6 hereof and the indemnity and contribution
agreements in Section 8 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
11. If any Pricing Agreement or Over-allotment Option shall be terminated
pursuant to Section 9 hereof, the Company shall not then be under any liability
to any Underwriter with respect to the Firm Securities or Optional Securities
covered by such Pricing Agreement except as provided in Section 6 and Section 8
hereof; but, if for any other reason Designated Securities are not delivered by
or on behalf of the Company as provided herein, the Company will reimburse the
Underwriters through the Representatives for all out-of-pocket expenses approved
in writing by the Representatives, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of such Designated Securities, but the Company shall then be
under no further liability to any Underwriter with respect to such Designated
Securities except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to
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<PAGE>
the Company shall be delivered or sent by mail, telex or facsimile transmission
to the address of the Company set forth in the Registration Statement;
Attention: Secretary; provided, however, that any notice to an Underwriter
pursuant to Section 8(c) hereof shall be delivered or sent by mail, telex or
facsimile transmission to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by the Representatives upon request. Any
such statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Section 8 and Section 10 hereof, the officers and directors of the
Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence for each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing Agreement may be executed by any one
or more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
Very truly yours,
UNUM Corporation
By:
------------------------------------
Name:
Title:
37
<PAGE>
ANNEX I
PRICING AGREEMENT
Goldman, Sachs & Co.,
As Representatives of the several
Underwriters named in Schedule I hereto
85 Broad Street,
New York, New York 10004
.........., 199 .
Dear Sirs:
UNUM Corporation, a Delaware corporation (the "Company"), proposes, subject
to the terms and conditions stated herein and in the Underwriting Agreement,
dated .........., 199 . (the "Underwriting Agreement"), to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") the Securities
specified in Schedule II hereto (the "Designated Securities") [consisting of
Firm Securities and any Optional Securities the Underwriters may elect to
purchase]. Each of the provisions of the Underwriting Agreement is incorporated
herein by reference in its entirety, and shall be deemed to be a part of this
Agreement to the same extent as if such provisions had been set forth in full
herein; and each of the representations and warranties set forth therein shall
be deemed to have been made at and as of the date of this Pricing Agreement,
except that each representation and warranty that refers to the Prospectus in
Section 2 of the Underwriting Agreement shall be deemed to be a representation
or warranty as of the date of the Underwriting Agreement in relation to the
Prospectus (as therein defined), and also a representation and warranty as of
the date of this Pricing Agreement in relation to the Prospectus as amended or
supplemented relating to the Designated Securities which are the subject of this
Pricing Agreement. Each reference to the Representatives herein and in the
provisions of the Underwriting Agreement so incorporated by reference shall be
deemed to refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The Representatives
designated to act on behalf of the Representatives and on behalf of each of the
Underwriters of the Designated Securities pursuant to Section 12 of the
Underwriting Agreement and the address of the Representatives referred to in
such Section 12 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
<PAGE>
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, [(a)] the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
the time and place and at the purchase price to the Underwriters set forth in
Schedule II hereto, the [principal amount] [number] of Firm Securities set forth
opposite the name of such Underwriter in Schedule I hereto [and, (b) in the
event and to the extent that the Underwriters shall exercise the election to
purchase Optional Securities, as provided below, the Company agrees to issue and
sell to each of the Underwriters, and each of the Underwriters agrees, severally
and not jointly, to purchase from the Company at the purchase price to the
Underwriters set out in Schedule II hereto that portion of [the number] [the
principal amount] of Optional Securities as to which such election shall have
been exercised], less the [number] [principal amount] of Designated Securities
covered by Delayed Delivery Contracts, if any, as may be specified in Schedule
II].
[The Company hereby grants to each of the Underwriters the right to
purchase at their election up to [the principal amount] [the number] of Optional
Securities set forth opposite the name of such Underwriter in Schedule I hereto
on the terms referred to in the paragraph above for the sole purpose of covering
over-allotments in the sale of the Firm Securities. Any such election to
purchase Optional Securities may be exercised by written notice from the
Representatives to the Company given within a period of 30 calendar days after
the date of this Pricing Agreement, setting forth the [aggregate number]
[aggregate principal amount] of Optional Securities to be purchased and the date
on which such Optional Securities are to be delivered, as determined by the
Representatives but in no event earlier than the First Time of Delivery or,
unless the Representatives and the Company otherwise agree in writing, no
earlier than two or later than ten business days after the date of such notice.]
If the foregoing is in accordance with your understanding, please sign and
return to us __ counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company. It is understood that your acceptance of this letter on behalf
of each of the Underwriters is or will be pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
Very truly yours,
2
<PAGE>
UNUM Corporation
By:
-------------------------------------
Name:
Title:
Accepted as of the date hereof:
Goldman, Sachs & Co.
- --------------------------------------------------------------------------------
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
3
<PAGE>
ANNEX II
Pursuant to Section 7(e) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules audited (and, if applicable,
prospective financial statements and/or pro forma financial information
examined) by them and included or incorporated by reference in the
Registration Statement or the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the Act or the
Exchange Act, as applicable, and the related published rules and
regulations thereunder; and, if applicable, they have made a review in
accordance with standards established by the American Institute of
Certified Public Accountants of the consolidated interim financial
statements, selected financial data, pro forma financial information,
prospective financial statements and/or condensed financial statements
derived from audited financial statements of the Company for the periods
specified in such letter, as indicated in their reports thereon, copies of
which have been furnished to the representatives of the Underwriters (the
"Representatives");
(iii) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company
for the five most recent fiscal years included in the Prospectus and
included or incorporated by reference in Item 6 of the Company's Annual
Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for five such fiscal years which were
included or incorporated by reference in the Company's Annual Reports on
Form 10-K for such fiscal years;
(iv) On the basis of limited procedures, not constituting an audit in
accordance with generally accepted auditing standards, consisting of a
reading of the unaudited financial statements and other information
referred to below, a reading of the latest available interim financial
statements of the Company and its subsidiaries, inspection of the minute
books of the Company and its subsidiaries since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of the Company and its subsidiaries
responsible for financial and accounting matters and such other inquiries
and procedures as may be specified in
<PAGE>
such letter, nothing came to their attention that caused them to believe
that:
(A) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included or incorporated by reference in the Company's Quarterly
Reports on Form 10-Q incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act as it applies to Form 10-Q
and the related published rules and regulations thereunder or are not
in conformity with generally accepted accounting principles applied on
a basis substantially consistent with the basis for the audited
consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included or incorporated by
reference in the Company's Annual Report on Form 10-K for the most
recent fiscal year;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited data and
items were not determined on a basis substantially consistent with the
basis for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included in
the Prospectus but from which were derived the unaudited condensed
financial statements referred to in clause (A) above and any unaudited
income statement data and balance sheet items included in the
Prospectus and referred to in Clause (B) above were not determined on
a basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those
statements;
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in
2
<PAGE>
the consolidated capital stock (other than issuances of capital stock
upon exercise of options and stock appreciation rights, upon earn-outs
of performance shares and upon conversions of convertible securities,
in each case which were outstanding on the date of the latest balance
sheet included or incorporated by reference in the Prospectus) or any
increase in the consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated net assets or other
items specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with
amounts shown in the latest balance sheet included or incorporated by
reference in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in Clause (E) above there were any
decreases in consolidated net revenues or any material decrease in
operating profit or any material decrease in the total or per share
amounts of consolidated net income or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable period
of the preceding year and with any other period of corresponding
length specified by the Representatives, except in each case for
increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(v) In addition to the audit referred to in their report(s) included
or incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (iv) above, they have carried out certain specified
procedures, not constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages and
financial information specified by the Representatives which are derived
from the general accounting records of the Company and its subsidiaries,
which appear in the Prospectus (excluding documents incorporated by
reference), or in Part II of, or in exhibits and schedules to, the
Registration Statement specified by the Representatives or in documents
incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to refer
to the Prospectus (including the documents
3
<PAGE>
incorporated by reference therein) as defined in the Underwriting Agreement as
of the date of the letter delivered on the date of the Pricing Agreement for
purposes of such letter and to the Prospectus as amended or supplemented
(including the documents incorporated by reference therein) in relation to the
applicable Designated Securities for purposes of the letter delivered at the
Time of Delivery for such Designated Securities.
4
<PAGE>
ANNEX III
DELAYED DELIVERY CONTRACT
UNUM Corporation
2211 Congress Street
Portland, Maine 04122
Attention
, 199
Dear Sirs:
The undersigned hereby agrees to purchase from UNUM Corporation
(hereinafter called the "Company"), and the Company agrees to sell to the
undersigned,
$
principal amount of the Company's debt securities (hereinafter called the
"Designated Securities"), offered by the Company's Prospectus dated
199 , as amended or supplemented, receipt of a copy of which is hereby
acknowledged, at a purchase price of % of the principal amount thereof, plus
accrued interest from the date from which interest accrues as set forth below,
and on the further terms and conditions set forth below, and on the further
terms and conditions set forth in this contract.
The undersigned will purchase the Designated Securities from the Company on
, 199 (the "Delivery Date") and interest on the Designated
Securities so purchased will accrue from , 199 .
The undersigned will purchase the Designated Securities from the Company on
the delivery date or dates and in the principal amount or amounts set forth
below:
PRINCIPAL DATE FROM WHICH
DELIVERY DATE AMOUNT INTEREST ACCRUES
------------- --------------- ----------------
, 19 $ , 19
, 19 $ , 19
EACH SUCH DATE ON WHICH DESIGNATED SECURITIES ARE TO BE PURCHASED HEREUNDER IS
HEREINAFTER REFERRED TO AS A "DELIVERY DATE."
Payment for the Designated Securities which the undersigned has agreed to
purchase on each Delivery Date shall be made to the Company or its order by
certified or official bank check in Clearing House funds at the office of
, or by wire transfer to a bank account specified by the
<PAGE>
Company, on such Delivery Date upon delivery to the undersigned of the
Designated Securities then to be purchased by the undersigned in definitive
fully registered form and in such denominations and registered in such names as
the undersigned may designate by written, telex or facsimile communication
addressed to the Company not less than five full business days prior to such
Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Designated Securities on each Delivery Date shall be subject to the condition
that the purchase of Designated Securities to be made by the undersigned shall
not on such Delivery Date be prohibited under the laws of the jurisdiction to
which the undersigned is subject. The obligation of the undersigned to take
delivery of and make payment for Designated Securities shall not be affected by
the failure of any purchaser to take delivery of and make payment for Designated
Securities pursuant to other contracts similar to this contract.
The undersigned understands that Underwriters (the "Underwriters") are also
purchasing Designated Securities from the Company, but that the obligations of
the Undersigned hereunder are not contingent on such purchases. Promptly after
completion of the sale to the Underwriters the Company will mail or deliver to
the undersigned at its address set forth below notice to such effect,
accompanied by a copy of the Opinion of Counsel for the Company delivered to the
Underwriters in connection therewith.
The undersigned represents and warrants that, as of the date of this
contract, the undersigned is not prohibited from purchasing the Designated
Securities hereby agreed to be purchased by it under the laws of the
jurisdiction to which the undersigned is subject.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
This contract may be executed by either of the parties hereto in any number
of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
A-2
<PAGE>
It is understood that the acceptance by the Company of any Delayed Delivery
Contract (including this contract) is in the Company's sole discretion and that,
without limiting the foregoing, acceptances of such contracts need not be on a
first-come, first-served basis. If this contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered by the Company.
Very truly yours,
-----------------------------------------
By:
--------------------------------------
(Authorized Signature)
Name:
Title:
-----------------------------------------
(Address)
Accepted: , 199
UNUM CORPORATION
By
---------------------------
Name:
Title:
A-3
<PAGE>
SCHEDULE I
[MAXIMUM
[NUMBER] [NUMBER]
[PRINCIPAL [PRINCIPAL
AMOUNT] OF AMOUNT] OF
[FIRM] OPTIONAL
SECURITIES SECURITIES
TO BE WHICH MAY
UNDERWRITER PURCHASED BE PURCHASED
----------- --------- ------------
Goldman, Sachs & Co. . . . . . . . . $
Names of other Underwriters . . . . . $
-----------
Total . . . . . . . . . . . . . $
-----------
-----------
<PAGE>
SCHEDULE II
[INSERT IF DEBT SECURITIES--
TITLE OF DESIGNATED SECURITIES:
[ %] [Floating Rate] [Zero Coupon] [Notes] [Convertible Subordinated]
[Debentures] due
AGGREGATE PRINCIPAL AMOUNT:
[$]
[PRINCIPAL AMOUNT OF FIRM SECURITIES:]
[PRINCIPAL AMOUNT OF OPTIONAL SECURITIES:]
PRICE TO PUBLIC:
% of the principal amount of the Designated Securities, plus accrued
interest from to [and accrued amortization, if any, from
to ]
PURCHASE PRICE BY UNDERWRITERS:
% of principal amount of the Designated Securities[, plus accrued interest
from to [and accrued amortization, if any, from to ]]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
[Same-Day funds]
INDENTURE:
Indenture dated , 19 , between the Company and , as Trustee
MATURITY:
INTEREST RATE:
[ %] [Zero Coupon] [See Floating Rate Provisions]
INTEREST PAYMENT DATES:
[months and dates]
COVENANTS:
REDEMPTION PROVISIONS:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, in the amount of
[$] or an integral multiple thereof.
<PAGE>
[on or after , at the following redemption prices (expressed in
percentages of principal amount). If [redeemed on or before , %, and if]
redeemed during the 12-month period beginning .
Redemption
Year Price
---- ----------
and thereafter at 100% of their principal amount, together in each case
with accrued interest to the redemption date.]
[on any interest payment date falling on or after , , at the
election of the Company, at a redemption price equal to the principal amount
thereof, plus accrued interest to the date of redemption.]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The designated Securities are entitled to the benefit of a sinking fund to
retire [$] principal amount of Designated Securities on in each of the
years through at 100% of their principal amount plus accrued interest]
[, together with [cumulative] [noncumulative] redemptions at the option of the
Company to retire an additional [$] principal amount of Designated Securities
in the years through at 100% of their principal amount plus accrued
interest].
[SECURITIES INTO WHICH CONVERTIBLE OR EXCHANGEABLE]
[Conversion Price]
[IF SECURITIES MAY BE PUT TO THE ISSUER BY HOLDERS, INSERT--
EXTENDABLE PROVISIONS:
Securities are repayable on , [insert date and years], at the
option of the holder, at their principal amount with accrued interest.
[IF SECURITIES ARE FLOATING RATE DEBT SECURITIES, INSERT--
FLOATING RATE PROVISIONS:
Initial annual interest rate will be % through [and thereafter will
be adjusted [monthly] [on each , , and ] [to an annual rate of %
above the average rate for -year [month] [securities] [certificates of
deposit] issued by and [insert names of banks].] [and the annual
interest rate [thereafter] [from through ] will be the interest yield
equivalent of the weekly average per annum market discount rate for -month
Treasury bills plus % of Interest Differential (the excess, if any, of (i) then
current weekly average per annum secondary market yield for -month certificates
of deposit over (ii) then current interest yield equivalent of the weekly
average per annum market discount rate
2
<PAGE>
for -month Treasury bills); [from and thereafter the rate will be the
then current interest yield equivalent plus % of Interest Differential].]
DEFEASANCE PROVISIONS:
[INSERT IF PREFERRED STOCK--
Title: .
[Number of Firm Securities:]
[Number of Optional Securities:]
Purchase Price to public (include accrued dividends, if any): $ per share of
Preferred Stock
Purchase Price to Underwriters (include accrued dividends, if any): $ per
share of Preferred Stock
Liquidation preference: $ per share of Preferred Stock
Annual Dividend: % of liquidation preference, payable [annually]
[semi-annually] [quarterly] on [ , ] [ and] , commencing
[Conversion rate: .]
[Sinking fund provisions: [None] [ ].]
[Redemption provisions: [None] [ ].]
[Other provisions*:]]
[Insert if Common Stock--
[Number of Firm Securities:]
[Number of Optional Securities:]
Purchase price per share to the public: $ per share [Formula].
Purchase price per share to the Underwriters: $ per share.] [Formula]
[Commission Payable to Underwriters: $ per share]
VOTING RIGHTS:
[INSERT IF WARRANTS--
Title: .
Number: .
3
<PAGE>
Securities issuable upon exercise of one Warrant: .
Warrant exercise price: $ per Warrant.
Date after which Warrants are exercisable: , .
Expiration Date: , .
Warrant Agent:
[Other Provisions*:]]
TIME OF DELIVERY:
CLOSING LOCATION:
DELAYED DELIVERY:
[None] [Underwriters' commission shall be . .% of the principal amount of
Designated Securities for which Delayed Delivery Contracts have been entered
into. Such commission shall be payable to the order of . . . .]
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives: Goldman, Sachs & Co.
Address for Notices, etc.: 85 Broad Street
New York, New York 10004.
[BLACKOUT PROVISIONS IF OTHER THAN DEBT SECURITIES--
During the period beginning from the date hereof and continuing to and
including the date [ ] [days] [years] after the date of the Prospectus, not to
offer, sell, contract to sell or otherwise dispose of any securities of the
Company (other than pursuant to employee stock option plans existing, or on the
conversion or exchange of convertible or exchangeable securities outstanding on
the date of the Pricing Agreement) which are substantially similar to the
Designated Securities [or the] [Common Stock] [insert other securities into
which convertible, exercisable or exchangeable for] issuable upon conversion,
exercise or exchange of the Designated Securities, without your prior written
consent].
[OTHER TERMS*]:
[Specified Funds For Payment of Purchase price:]
* A description of particular tax, accounting or other unusual features
(including any event risk provisions) of the Designated Securities should be set
forth, or referenced to an attached and accompanying description, if necessary
to ensure agreement as to the terms of the Securities to be purchased and sold.
Such a description might appropriately be in the form in which such features
will be described in the Prospectus Supplement for the offering.
4
<PAGE>
UNUM CORPORATION
$[ ]
Medium-Term Notes, Series C
DISTRIBUTION AGREEMENT
July __, 1996
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Morgan Stanley & Co. Incorporated
1251 Avenue of the Americas
New York, New York 10020
[
]
Dear Sirs:
UNUM Corporation, a Delaware corporation (the "Company"), proposes to
issue and sell from time to time its Medium-Term Notes, Series C (the
"Securities") at an aggregate initial public offering price of up to
$250,000,000 and agrees with each of you (individually, an "Agent", and
collectively, the "Agents") as set forth in this Agreement.
Subject to the terms and conditions stated herein and to the
reservation by the Company of the right to sell Securities directly on its own
behalf, the Company hereby (i) appoints each Agent as an agent of the Company
for the purpose of soliciting and receiving offers to purchase Securities from
the Company pursuant to Section 2(a) hereof and (ii) agrees that, except as
otherwise contemplated herein, whenever it determines to sell Securities
directly to any Agent as principal, it will enter into a separate agreement
(each a "Terms Agreement") which may be either (i) a written agreement,
substantially in the form of Annex I hereto, or (ii) an oral agreement between
such Agent and the Company confirmed in writing by such Agent to the Company,
relating to such sale in accordance with Section 2(b) hereof.
The Securities will be issued under the Indenture, dated as of
September 15, 1990 (the "Indenture"), between the Company and The Chase
Manhattan Bank (National Association), as Trustee (the "Trustee"). The
Securities
<PAGE>
shall have the maturity ranges, interest rates, if any, redemption provisions
and other terms set forth in the Prospectus referred to below as it may be
amended or supplemented from time to time. The Securities will be issued, and
the terms and rights of holders thereof established, from time to time by the
Company in accordance with the Indenture.
1. The Company represents and warrants to, and agrees with, each
Agent that:
(a) Two registration statements (File Nos. 33-69132 and 333- _____),
including a prospectus for use in connection with the Securities pursuant to
Rule 429 under the Securities Act of 1933, as amended (the "Act"), in respect of
$500,000,000 aggregate amount of securities of the Company, including the
Securities, have been filed with the Securities and Exchange Commission (the
"Commission"); such registration statements and any post-effective amendment
thereto, each in the form heretofore delivered or to be delivered to such Agent,
excluding exhibits to such registration statements, but including all documents
incorporated by reference therein have been declared effective by the Commission
in such form; no other document with respect to such registration statements
(other than a document incorporated by reference therein) has heretofore been
filed or transmitted for filing with the Commission; such prospectus included
for use in connection with the Securities pursuant to Rule 429 under the Act and
the rules and regulations thereunder for use of such prospectus in connection
with the Securities; and no stop order suspending the effectiveness of either of
such registration statements has been issued and no proceeding for that purpose
has been instituted or threatened by the Commission (any preliminary prospectus
included in either of such registration statements or filed with the Commission
pursuant to Rule 424(a) of the rules and regulations of the Commission under the
Act, being hereinafter called a "Preliminary Prospectus"; the various parts of
such registration statements, including all exhibits thereto and the documents
incorporated by reference in the prospectuses contained in such registration
statements at the time such part of such registration statements became
effective but excluding Form T-1, each such part as amended at the time such
part became effective, being hereinafter collectively called the "Registration
Statement"; the prospectus (including the prospectus supplement) relating to the
Securities, in the form in which it has most recently been filed, or transmitted
for filing, with the Commission on or prior to the date of this Agreement being
hereinafter called the "Prospectus"; any reference herein to any Preliminary
Prospectus or the
-2-
<PAGE>
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to the applicable form under the Act, as of the date
of such Preliminary Prospectus or Prospectus, as the case may be; any reference
to any amendment or supplement to any Preliminary Prospectus or the Prospectus,
including any supplement to the Prospectus that sets forth only the terms of the
particular issue of the Securities (a "Pricing Supplement"), shall be deemed to
refer to and include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and incorporated by reference in such
Preliminary Prospectus or the Prospectus, as the case may be; any reference to
any amendment to the Registration Statement shall be deemed to include any
report of the Company filed pursuant to the Exchange Act after the effective
date of the Registration Statement that is incorporated by reference in the
Registration Statement; and any reference to the Prospectus as amended or
supplemented shall be deemed to refer to and include the Prospectus as amended
or supplemented (including by the applicable Pricing Supplement filed in
accordance with Section 4(a) hereof) in relation to Securities sold pursuant to
this Agreement, in the form in which it is filed with the Commission pursuant to
Rule 424(b) under the Act and in accordance with Section 4(a) hereof, including
any documents incorporated by reference therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus, or any
further amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
PROVIDED, HOWEVER, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by any Agent expressly for use in the
Prospectus as
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<PAGE>
amended or supplemented to relate to a particular issuance of Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the Act
and the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and
the rules and regulations of the Commission thereunder and do not and will not,
as of the applicable effective date in the case of the Registration Statement
and any amendment thereto and as of the applicable filing date in the case of
the Prospectus and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
PROVIDED, HOWEVER, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by any Agent expressly for use in the
Prospectus as amended or supplemented to relate to a particular issuance of
Securities;
(d) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Prospectus;
and, since the respective dates as of which information is given or incorporated
by reference in the Registration Statement and the Prospectus, there has not
been any material change in the capital stock or long-term debt of the Company
or any of its subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries considered as a whole, otherwise
than as set forth or contemplated in the Prospectus;
(e) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has been
duly qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each other jurisdiction in which it owns or
leases
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<PAGE>
properties, or conducts any business, so as to require such qualification,
except for any jurisdiction where failure to so qualify will not have a material
adverse effect on the Company; and each subsidiary of the Company has been duly
organized and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation;
(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and non-
assessable;
(g) The Securities have been duly authorized, and, when Securities
are issued and delivered pursuant to this Agreement and any Terms Agreement,
such Securities will have been duly executed, authenticated, issued and
delivered and will constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture, which will be
substantially in the form incorporated by reference in the Prospectus; the
Indenture has been duly authorized, executed and delivered and duly qualified
under the Trust Indenture Act and constitutes a valid and legally binding
instrument, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles; and the Indenture conforms, and the Securities of any particular
issuance of Securities will conform, to the descriptions thereof in the
Prospectus as amended or supplemented to relate to such issuance of Securities;
(h) The issue and sale of the Securities, the compliance by the
Company with all of the provisions of the Securities, the Indenture, this
Agreement and any Terms Agreement, and the consummation of the transactions
herein and therein contemplated will not (i) conflict with or result in a breach
of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company is a party or by which the Company is bound or
to which any of the property or assets of the Company is subject, except, in all
such cases, for such conflicts, breaches, violations or defaults as would not
have a material adverse effect on the financial condition of the Company and its
subsidiaries taken as a whole, and (ii) result in any violation of the
provisions of the Certificate of Incorporation or the By-Laws of the Company or
any statute or any order, rule or regulation of any such court or governmental
agency or body having jurisdiction over the
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<PAGE>
Company or any of its properties; and no consent, approval, authorization,
order, registration or qualification of or with any such court or governmental
agency or body is required for the solicitation of offers to purchase
Securities, the issue and sale of the Securities or the consummation by the
Company of the other transactions contemplated by this Agreement, any Terms
Agreement or the Indenture, except such as have been, or will have been prior to
the Commencement Date (as defined in Section 3 hereof), obtained under the Act
or the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities,
insurance or Blue Sky laws in connection with the solicitation by such Agent of
offers to purchase Securities from the Company and with purchases of Securities
by such Agent as principal, as the case may be, in each case in the manner
contemplated hereby;
(i) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its subsidiaries
is a party or of which any property of the Company or any of its subsidiaries is
the subject which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material adverse
effect on the consolidated financial position, stockholders' equity or results
of operations of the Company and its subsidiaries; and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(j) Immediately after any sale of Securities by the Company hereunder
or under any Terms Agreement, the aggregate amount of Securities which shall
have been issued and sold by the Company hereunder or under any Terms Agreement
and of any debt securities of the Company (other than such Securities) that
shall have been issued and sold pursuant to the Registration Statement will not
exceed the amount of debt securities registered under the Registration
Statement;
(k) Coopers & Lybrand L.L.P., who have audited certain financial
statements of the Company and its subsidiaries, are independent certified public
accountants as required by the Act and the rules and regulations of the
Commission thereunder; and
(l) (i) The Company and (ii) its subsidiaries which are engaged in
the insurance business are, in all material respects, in compliance with, and
conduct, in all material respects, their respective businesses in conformity
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<PAGE>
with, all applicable insurance laws and regulations; and no order preventing or
suspending the use of the Prospectus or any Preliminary Prospectus has been
issued or threatened by the Superintendent of the Maine Bureau of Insurance.
2. (a) On the basis of the representations and warranties, and
subject to the terms and conditions herein set forth, each of the Agents hereby
severally and not jointly agrees, as agent of the Company, to use its reasonable
efforts to solicit and receive offers to purchase the Securities from the
Company upon the terms and conditions set forth in the Prospectus as amended or
supplemented from time to time. So long as the provisions of this Agreement
relating to the solicitation of offers to purchase Securities from the Company
shall not have been terminated pursuant to Section 10 with respect to any Agent,
the Company shall not, without the consent of such Agent, solicit or accept
offers to purchase, or sell, any debt securities with a maturity at the time of
original issuance of nine months to 30 years except pursuant to this Agreement
or any Terms Agreement or except pursuant to a private placement not
constituting a public offering under the Act or except in connection with a firm
commitment underwriting pursuant to an underwriting agreement that does not
provide for a continuous offering of medium-term debt securities. However, (i)
the Company reserves the right to sell, and may solicit and accept offers to
purchase, Securities directly on its own behalf, and, in the case of any such
sale not resulting from a solicitation made by any Agent, no commission will be
payable with respect to such sale; and (ii) the Company shall have the right at
any time to request the Agents to execute, prior to the date 15 business days
after such request, an amendment to this Agreement to provide for another person
as an Agent hereunder on substantially the same terms as the Agents hereunder on
the date of such request, and each Agent shall have the right either to execute
such amendment or to terminate the provisions of this Agreement relating to the
solicitation of offers to purchase Securities from the Company pursuant to
Section 10 with respect to such Agent. These provisions shall not limit
Section 4(f) hereof or any similar provision included in any Terms Agreement.
Procedural details relating to the issue and delivery of Securities,
the solicitation of offers to purchase Securities and the payment in each case
therefor shall be as set forth in the Administrative Procedure attached hereto
as Annex II as it may be amended from time to time by written agreement between
the Agents and the Company (the "Administrative Procedure"). The provisions of
the Administrative Procedure shall apply to all transactions
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<PAGE>
contemplated hereunder other than those made pursuant to a Terms Agreement.
Each Agent and the Company agree to perform the respective duties and
obligations specifically provided to be performed by each of them in the
Administrative Procedure. The Company will furnish to the Trustee a copy of the
Administrative Procedure as from time to time in effect.
The Company reserves the right, in its sole discretion, to instruct
the Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase the Securities. As soon as practicable, but
in any event not later than one business day in New York City, after receipt of
notice from the Company, the Agents will suspend solicitation of offers to
purchase Securities from the Company until such time as the Company has advised
the Agents that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, at the time of
settlement of any sale of a Security by the Company as a result of a
solicitation made by such Agent, in an amount equal to the following applicable
percentage of the principal amount of such Security sold:
Commission
(percentage of
aggregate
principal amount
Range of Maturities of Securities Sold)
------------------- -------------------
From 9 months to less than 1 year. . . . . . . . . . . . . . . . .125%
From 1 year to less than 18 months . . . . . . . . . . . . . . . .150%
From 18 months to less than 2 years. . . . . . . . . . . . . . . .200%
From 2 years to less than 3 years. . . . . . . . . . . . . . . . .250%
From 3 years to less than 4 years. . . . . . . . . . . . . . . . .350%
From 4 years to less than 5 years. . . . . . . . . . . . . . . . .450%
From 5 years to less than 6 years. . . . . . . . . . . . . . . . .500%
From 6 years to less than 7 years. . . . . . . . . . . . . . . . .550%
From 7 years to less than 10 years . . . . . . . . . . . . . . . .600%
From 10 years to less than 15 years. . . . . . . . . . . . . . . .625%
From 15 years to less than 20 years. . . . . . . . . . . . . . . .675%
20 years and more. . . . . . . . . . . . . . . . . . . . . . . . .750%
(b) Each sale of Securities to any Agent as principal shall be made
in accordance with the terms of this Agreement and (unless the Company and such
Agent shall otherwise agree) a Terms Agreement which will provide for the sale
of such Securities to, and the purchase thereof by, such Agent. A Terms
Agreement may also specify certain provisions relating to the reoffering of such
Securities by
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<PAGE>
such Agent. The commitment of any Agent to purchase Securities as principal,
whether pursuant to any Terms Agreement or otherwise, shall be deemed to have
been made on the basis of the representations and warranties of the Company
herein contained and shall be subject to the terms and conditions herein set
forth. Each Terms Agreement shall specify the principal amount of Securities to
be purchased by any Agent pursuant thereto, the price to be paid to the Company
for such Securities, any provisions relating to rights of, and default by,
underwriters acting together with such Agent in the reoffering of the Securities
and the time and date and place of delivery of and payment for such Securities.
Such Terms Agreement shall also specify any requirements for opinions of
counsel, accountants' letters and officers' certificates pursuant to Section 4
hereof.
For each sale of Securities to an Agent as principal that is not made
pursuant to a Terms Agreement, the procedural details relating to the issue and
delivery of such Securities and payment therefor shall be as set forth in the
Administrative Procedure. For each such sale of Securities to an Agent as
principal that is not made pursuant to a Terms Agreement, the Company agrees to
pay such Agent a commission (or grant an equivalent discount) as provided in
Section 2(a) hereof and in accordance with the schedule set forth therein.
Each time and date of delivery of and payment for Securities to be
purchased by an Agent as principal, whether set forth in a Terms Agreement or in
accordance with the Administrative Procedure, is referred to herein as a "Time
of Delivery".
(c) Each Agent agrees, with respect to any Security denominated in a
currency other than U.S. dollars, as agent, directly or indirectly, not to
solicit offers to purchase, and as principal under any Terms Agreement or
otherwise, directly or indirectly, not to offer, sell or deliver, such Security
in, or to residents of, the country issuing such currency, except as permitted
by applicable law.
3. The documents required to be delivered pursuant to Section 6
hereof on the Commencement Date (as defined below) shall be delivered to the
Agents at the offices of Sullivan & Cromwell, 125 Broad Street, New York, New
York, at 11:00 a.m., New York City time, on the date of this Agreement, which
date and time of such delivery may be postponed by agreement between the Agents
and the Company but in no event shall be later than the day prior to the date on
which solicitation of offers to purchase Securities
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<PAGE>
is commenced or on which any Terms Agreement is executed (such time and date
being referred to herein as the "Commencement Date").
4. The Company covenants and agrees with each Agent:
(a) (i) To make no amendment or supplement to the Registration
Statement or the Prospectus (A) prior to the Commencement Date which shall be
disapproved by any Agent promptly after reasonable notice thereof or (B) except
in the case of any document incorporated by reference in the Prospectus
subsequent to the date of any Terms Agreement or other agreement by an Agent to
purchase Securities as principal and required to be filed under the Exchange
Act, after the date of such Terms Agreement or such other agreement and prior to
the related Time of Delivery which shall be disapproved by any Agent party to
such Terms Agreement or so purchasing as principal promptly after reasonable
notice thereof; (ii) to prepare, with respect to any Securities to be sold
through or to such Agent pursuant to this Agreement, a Pricing Supplement with
respect to such Securities in a form previously approved by such Agent and to
file such Pricing Supplement pursuant to Rule 424(b) under the Act not later
than the close of business of the Commission on the fifth business day (or such
other day as Rule 424 shall require) after the date on which such Pricing
Supplement is first used; (iii) to make no amendment or supplement to the
Registration Statement or Prospectus, other than any Pricing Supplement or a
supplement relating solely to an offering of debt securities other than the
Securities or any document filed under the Act or Exchange Act which is
incorporated by reference into the Prospectus, at any time prior to having
afforded each Agent a reasonable opportunity to review and comment on it;
(iv) to file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required in connection with the offering or sale of
the Securities, and during such same period to advise such Agent, promptly after
the Company receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or has become effective or any supplement
to the Prospectus or any amended Prospectus, other than a supplement relating
solely to an offering of debt securities other than the Securities and other
than any Pricing Supplement that relates to Securities not purchased through or
by such Agents, has been filed with, or mailed for filing to, the Commission, of
the issuance by the Commission of any stop order or of any order preventing or
suspending the use
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<PAGE>
of any prospectus relating to the Securities, of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amendment or supplement of the Registration
Statement or Prospectus or for additional information; and (v) in the event of
the issuance of any such stop order or of any such order preventing or
suspending the use of any prospectus relating to the Securities or suspending
any such qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) Promptly from time to time to take such action as such Agent
reasonably may request to qualify the Securities for offering and sale under the
securities laws of such United States jurisdictions as such Agent may request
and to comply with such laws so as to permit the continuance of sales and
dealings therein for as long as may be necessary to complete the distribution or
sale of the Securities; PROVIDED, HOWEVER, that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction;
(c) To furnish such Agent with copies of the Registration Statement
and each amendment thereto, with copies of the Prospectus as each time amended
or supplemented, other than any Pricing Supplement (except as provided in the
Administrative Procedure) or a prospectus supplement relating solely to an
offering of debt securities other than the Securities, in the form in which it
is filed with the Commission pursuant to Rule 424 under the Act, and with copies
of the documents incorporated by reference therein, all in such quantities as
such Agent may reasonably request from time to time; and, if the delivery of a
prospectus is required at any time in connection with the offering or sale of
the Securities (including Securities purchased from the Company by such Agent as
principal) and if at such time any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the Act, the
Exchange Act or the Trust Indenture Act, to notify such Agent and request such
Agent, in its capacity as agent of the Company, to suspend solicitation of
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<PAGE>
offers to purchase Securities from the Company (and, if so notified, such Agent
shall cease such solicitations as soon as practicable, but in any event not
later than one business day later); and if the Company shall decide to amend or
supplement the Registration Statement or the Prospectus as then amended or
supplemented, to so advise such Agent promptly by telephone (with confirmation
in writing) and to prepare and cause to be filed promptly with the Commission an
amendment or supplement to the Registration Statement or the Prospectus as then
amended or supplemented that will correct such statement or omission or effect
such compliance; PROVIDED, HOWEVER, that if during such same period such Agent
continues to own Securities purchased from the Company by such Agent as
principal or such Agent is otherwise required to deliver a prospectus in respect
of transactions in the Securities, the Company shall promptly prepare and file
with the Commission such an amendment or supplement;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after (i) the
effective date of the Registration Statement (as defined in Rule 158(c)),
(ii) the effective date of each post-effective amendment to the Registration
Statement, and (iii) the date of each filing by the Company with the Commission
of an Annual Report on Form 10-K that is incorporated by reference in the
Registration Statement, an earning statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the option of
the Company, Rule 158);
(e) So long as any Securities are outstanding, to furnish to each
Agent copies of all reports or other communications (financial or other)
furnished to stockholders, and deliver to such Agent (i) as soon as they are
available, copies of any reports and financial statements furnished to or filed
with the Commission or any national securities exchange on which any class of
securities of the Company is listed; and (ii) such additional information
concerning the business and financial condition of the Company as such Agent may
from time to time reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Company and its
subsidiaries are consolidated in reports furnished to its stockholders generally
or to the Commission);
(f) That, from the date of any Terms Agreement with such Agent or
other agreement by such Agent to purchase Securities as principal, if required
by such Terms Agreement
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<PAGE>
or other agreement, and continuing to and including the earlier of (i) the
termination of the trading restrictions for the Securities purchased thereunder,
as notified to the Company by such Agent and (ii) the related Time of Delivery,
the Company will not, without the prior written consent of such Agent, offer,
sell, contract to sell or otherwise dispose of any debt securities of the
Company which both mature more than 9 months after such Time of Delivery and are
substantially similar to the Securities, other than debt securities which the
Company has previously contracted to sell and with respect to which the Company
has advised such Agent in or in connection with such Terms Agreement or other
agreement or of which such Agent has actual knowledge thereof;
(g) That each acceptance by the Company of an offer to purchase
Securities hereunder (including any purchase by such Agent as principal not
pursuant to a Terms Agreement), and each execution and delivery by the Company
of a Terms Agreement with such Agent, shall be deemed to be an affirmation to
such Agent that the representations and warranties of the Company contained in
or made pursuant to this Agreement are true and correct as of the date of such
acceptance or of such Terms Agreement, as the case may be, as though made at and
as of such date, and an undertaking that such representations and warranties
will be true and correct as of the settlement date for the Securities relating
to such acceptance or as of the Time of Delivery relating to such sale, as the
case may be, as though made at and as of such date (except that such
representations and warranties shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented relating to such
Securities);
(h) That on April 15 (or if such day is not a business day, the next
succeeding business day) of every year this Agreement is in effect, beginning on
April 15, 1997, or as otherwise reasonably requested by the Agents, and each
time the Company sells Securities to such Agent as principal pursuant to a Terms
Agreement and such Terms Agreement specifies the delivery of an opinion or
opinions by Sullivan & Cromwell, counsel to the Agents, as a condition to the
purchase of Securities pursuant to such Terms Agreement, the Company shall
furnish to such counsel such papers and information as they may reasonably
request to enable them to furnish to such Agent the opinion or opinions referred
to in Section 6(b) hereof;
(i) That each time the Registration Statement or the Prospectus shall
be amended or supplemented (other than by a Pricing Supplement or a supplement
relating solely to
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<PAGE>
an offering of debt securities other than the Securities), each time a document
filed under the Act or the Exchange Act is incorporated by reference into the
Prospectus (other than a current report on Form 8-K unless reasonably requested
by the Agents) and each time the Company sells Securities to such Agent as
principal pursuant to a Terms Agreement and such Terms Agreement specifies the
delivery of an opinion under this Section 4(i) as a condition to the purchase of
Securities pursuant to such Terms Agreement, the Company shall furnish or cause
to be furnished forthwith to such Agent written opinions of Kevin J. Tierney,
Senior Vice President, Secretary and General Counsel of the Company, or other
counsel for the Company satisfactory to such Agent, dated the date of such
amendment, supplement or incorporation or the Time of Delivery relating to such
sale, as the case may be, in form satisfactory to such Agent, to the effect that
such Agent may rely on such opinion of such counsel referred to in Section 6(c)
hereof which were last furnished to such Agent to the same extent as though it
were dated the date of such letter authorizing reliance (except that the
statements in such last opinions shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such date) or, in
lieu of such opinions, opinions of the same tenor as the opinions of such
counsel referred to in Section 6(c) hereof but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
date;
(j) That on April 15 (or if such day is not a business day, the next
succeeding business day) of every year this Agreement is in effect, beginning on
April 15, 1997, or as otherwise reasonably requested by the Agents, and each
time the Company sells Securities to such Agent as principal pursuant to a Terms
Agreement and such Terms Agreement specifies the delivery of an opinion under
this Section 4(j) as a condition to the purchase of Securities pursuant to such
Terms Agreement, the Company shall furnish or cause to be furnished forthwith to
such Agent written opinions of Skadden, Arps, Slate, Meagher & Flom, special
counsel for the Company, or other counsel for the Company satisfactory to such
Agent, in form satisfactory to such Agent, to the effect that such Agent may
rely on such opinion of such counsel referred to in Section 6(d) hereof which
were last furnished to such Agent to the same extent as though it were dated the
date of such letter authorizing reliance (except that the statements in such
last opinions shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date) or, in lieu of such
opinions, opinions of the same tenor as the opinions of such counsel referred to
in Section 6(d) hereof
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<PAGE>
but modified to relate to the Registration Statement and the Prospectus as
amended and supplemented to such date;
(k) That each time the Registration Statement or the Prospectus shall
be amended or supplemented (other than a supplement relating solely to an
offering of debt securities other than the Securities) and each time that a
document filed under the Act or the Exchange Act is incorporated by reference
into the Prospectus (other than a Current Report on Form 8-K unless reasonably
requested by the Agents), in either case to set forth financial information
included in or derived from the Company's consolidated financial statements or
accounting records, and each time the Company sells Securities to such Agent as
principal pursuant to a Terms Agreement and such Terms Agreement specifies the
delivery of a letter under this Section 4(k) as a condition to the purchase of
Securities pursuant to such Terms Agreement, the Company shall cause the
independent certified public accountants who have audited the financial
statements of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement to furnish such Agent a letter, dated
the date of such amendment, supplement or incorporation or the Time of Delivery
relating to such sale, as the case may be, in form satisfactory to such Agent,
of the same tenor as the letter referred to in Section 6(e) hereof but modified
to relate to the Registration Statement and the Prospectus as amended or
supplemented to the date of such letter, with such changes as may be necessary
to reflect changes in the financial statements and other information derived
from the accounting records of the Company, to the extent such financial
statements and other information are available as of a date not more than five
business days prior to the date of such letter; PROVIDED, HOWEVER, that, with
respect to any financial information or other matter, such letter may reconfirm
as true and correct at such date as though made at and as of such date, rather
than repeat, statements with respect to such financial information or other
matter made in the letter referred to in Section 6(e) hereof which was last
furnished to such Agent; and
(l) That each time the Registration Statement or the Prospectus shall
be amended or supplemented (other than by a Pricing Supplement or a prospectus
supplement relating solely to an offering of debt securities other than the
Securities), each time a document filed under the Act or the Exchange Act is
incorporated by reference into the Prospectus (other than a Current Report on
Form 8-K unless reasonably requested by the Agents), and each time the Company
sells Securities to such Agent as principal and the applicable Terms Agreement
specifies the delivery of a
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<PAGE>
certificate under this Section 4(l) as a condition to the purchase of Securities
pursuant to such Terms Agreement, the Company shall furnish or cause to be
furnished forthwith to such Agent a certificate, dated the date of such
supplement, amendment, incorporation or the Time of Delivery relating to such
sale, as the case may be, in such form and executed by such officers of the
Company as shall be satisfactory to such Agent, to the effect that the
statements contained in the certificates referred to in Section 6(h) hereof
which were last furnished to such Agent are true and correct at such date as
though made at and as of such date (except that such statements shall be deemed
to relate to the Registration Statement and the Prospectus as amended and
supplemented to such date) or, in lieu of such certificate, certificates of the
same tenor as the certificates referred to in said Section 6(h) but modified to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such date.
5. The Company covenants and agrees with each Agent that the Company
will pay or cause to be paid the following: (i) the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus, the Prospectus and any Pricing
Supplements and all other amendments and supplements thereto and the mailing and
delivering of copies thereof to the Agents; (ii) the reasonable fees and
expenses of counsel for the Agents in connection with the establishment of the
program contemplated hereby, any opinions to be rendered by such counsel
hereunder and the transactions contemplated hereunder; (iii) the cost of
printing, preparing by word processor or reproducing this Agreement, any Terms
Agreement, the Indenture, any Blue Sky and Legal Investment Memoranda and any
other documents in connection with the offering, purchase, sale and delivery of
the Securities; (iv) all expenses in connection with the qualification of the
Securities for offering and sale under state securities laws as provided in
Section 4(b) hereof, including reasonable fees and disbursements of counsel for
the Agents in connection with such qualification and in connection with the Blue
Sky and legal investment surveys; (v) any fees charged by securities rating
services for rating the Securities; (vi) any filing fees incident to any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Securities; (vii) the cost of preparing, and providing
any CUSIP or other identification number for, the Securities; (viii) the fees
and expenses of the Trustee and any agent of the Trustee and any transfer or
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paying agent of the Company and the fees and disbursements of counsel for any
Trustee or such agent in connection with any Indenture and the Securities; (ix)
the fees and expenses of any Depositary (as defined in the Indenture) and any
nominees thereof in connection with the Securities; (x) any reasonable
advertising expenses connected with the solicitation of offers to purchase and
the sale of Securities so long as such advertising expenses have been approved
in advance by the Company (any advertising expense approved by the Company in
advance shall be deemed to be reasonable); and (xi) all other reasonable costs
and expenses incident to the performance of the Company's obligations hereunder
which are not otherwise specifically provided for in this Section. Except as
provided in Sections 7 and 8 hereof, each Agent shall pay all other expenses it
incurs.
6. The obligation of any Agent, as agent of the Company, at any time
("Solicitation Time") to solicit offers to purchase the Securities, the
obligation of any Agent to purchase Securities as principal, pursuant to any
Terms Agreement or otherwise, and the obligation of any purchaser of Securities
as a result of an offer to purchase solicited by any Agent, shall be subject, in
the discretion of such Agent or purchaser, as the case may be, to the condition
that all representations and warranties and other statements of the Company
herein (and, in the case of an obligation of the Agents under a Terms Agreement,
in or incorporated in such Terms Agreement by reference) are true and correct at
and as of the Commencement Date and any applicable date referred to in Section
4(l) hereof, as the case may be, and at and as of such Solicitation Time,
settlement date or Time of Delivery, as the case may be, the condition that
prior to such Solicitation Time, settlement date or Time of Delivery, as the
case may be, the Company shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) (i) With respect to any Securities sold at or prior to such
Solicitation Time, settlement date or Time of Delivery, as the case may be, the
Prospectus as amended or supplemented (including the Pricing Supplement) with
respect to such Securities shall have been filed with the Commission pursuant to
Rule 424(b) under the Act within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with Section
4(a) hereof; (ii) no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission; (iii) all
requests for additional information on the part of the Commission shall have
been complied with to
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the reasonable satisfaction of such Agent; and (iv) after the date of any Terms
Agreement or other agreement by an Agent to purchase Securities as principal and
prior to the related Time of Delivery no document shall have been incorporated
by reference into the Prospectus which shall be disapproved by such Agent
promptly after reasonable notice thereof;
(b) Sullivan & Cromwell, counsel to the Agents, shall have furnished
to such Agent (i) such opinion or opinions, dated the Commencement Date, with
respect to the incorporation of the Company, the validity of the Indenture, the
Securities, the Registration Statement, the Prospectus as amended or
supplemented and other related matters as such Agent may reasonably request, and
(ii) if and to the extent requested by such Agent, with respect to each
applicable date referred to in Section 4(h) hereof that is on or prior to such
Solicitation Time or Time of Delivery, as the case may be, an opinion or
opinions, dated such applicable date, to the effect that such Agent may rely on
the opinion or opinions which were last furnished to such Agent pursuant to this
Section 6(b) to the same extent as though it or they were dated the date of such
letter authorizing reliance (except that the statements in such last opinion or
opinions shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date) or, in any case, in lieu of
such an opinion or opinions, an opinion or opinions of the same tenor as the
opinion or opinions referred to in clause (i) but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
date; and in each case such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
(c) Kevin J. Tierney, Senior Vice President, Secretary and General
Counsel of the Company, or other counsel for the Company satisfactory to such
Agent, shall have furnished to such Agent his written opinions, dated the
Commencement Date and each applicable date referred to in Section 4(i) hereof
that is on or prior to such Solicitation Time or Time of Delivery, as the case
may be, in form and substance satisfactory to such Agent, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus as amended or supplemented;
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(ii) The Company has an authorized capitalization as set forth in
the Prospectus as amended or supplemented and all of the issued shares
of capital stock of the Company have been duly and validly authorized
and issued and are fully paid and non-assessable;
(iii) The Company is qualified to do business, and is in good
standing, as a foreign corporation under the laws of each jurisdiction
in which the business conducted by it requires such qualification or,
if not so qualified and in good standing in any such jurisdiction,
such failure to be so qualified and in good standing, as of the date
of this opinion, will not result in liabilities material to the
business of the Company;
(iv) Each subsidiary of the Company has been duly organized, and
is subsisting and in good standing as a corporation under the laws of
its jurisdiction of incorporation, and all of the issued shares of
capital stock of each such subsidiary have been duly and validly
authorized and issued, are fully paid and non-assessable, and, to the
best knowledge of such counsel, are owned directly or indirectly by
the Company, free and clear of all liens, encumbrances, equities or
claims;
(v) To the best of such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is
a party or of which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the consolidated financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries; and, to the best of such counsel's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(vi) This Agreement and any applicable Terms Agreement have been
duly authorized, executed and delivered by the Company;
(vii) The Securities have been duly authorized and, when duly
executed, authenticated, issued and
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delivered by the Company, will constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the
Indenture, except to the extent that the enforcement thereof may be
limited by (1) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors'
rights generally and (2) general principles of equity (regardless of
whether enforcement is considered in a proceeding at law or equity);
and the Indenture conforms and the Securities will conform to the
descriptions thereof in the Prospectus as amended or supplemented;
(viii) The Indenture has been duly authorized, executed and
delivered by the parties thereto and constitutes a valid and legally
binding instrument, enforceable in accordance with its terms, except
to the extent that the enforcement thereof may be limited by (1)
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or thereafter in effect relating to creditors' rights
generally and (2) general principles of equity (regardless of whether
enforcement is considered in a proceeding at law or equity); and the
Indenture has been duly qualified under the Trust Indenture Act;
(ix) The issue and sale of the Securities, the compliance by the
Company with all of the provisions of the Securities, the Indenture,
this Agreement and any applicable Terms Agreement and the consummation
of the transactions herein and therein contemplated will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument known
to such counsel to which the Company is a party or by which the
Company is bound or to which any of the property or assets of the
Company is subject, nor will such actions result in any violation of
the provisions of the Certificate of Incorporation or By-Laws of the
Company or any statute or any order, rule or regulation known to such
counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its properties;
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<PAGE>
(x) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is
required for the solicitation of offers to purchase Securities, the
issue and sale of the Securities or the consummation by the Company of
the other transactions contemplated by this Agreement, any applicable
Terms Agreement or the Indenture, except such as have been obtained
under the Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities, insurance or Blue Sky laws in
connection with the solicitation by the Agents of offers to purchase
Securities from the Company and with purchases of Securities by an
Agent as principal, as the case may be, in each case in the manner
contemplated hereby;
(xi) The documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; and he has no reason to believe that any of such
documents, when they became effective or were so filed, as the case
may be, contained, in the case of a registration statement which
became effective under the Act, an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or, in the
case of other documents which were filed under the Act or the Exchange
Act with the Commission, an untrue statement of a material 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; and
(xii) The Registration Statement and the Prospectus as amended and
supplemented and any further amendments and supplements thereto made
by the Company prior to the date of such opinion (other than the
financial statements and related schedules therein, as to which such
counsel need
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express no opinion) comply as to form in all material respects with
the requirements of the Act and the Trust Indenture Act and the rules
and regulations thereunder.
In addition, such counsel shall state that he has no reason to believe
that, as of its effective date, the Registration Statement or any further
amendment thereto made by the Company prior to the date of such opinion (other
than the financial statements and related schedules therein, as to which such
counsel need express no opinion) contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that, as of its date,
the Prospectus as amended or supplemented or any further amendment or supplement
thereto made by the Company prior to the date of such opinion (other than the
financial statements and related schedules therein, as to which such counsel
need express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading or
that, as of the date of such opinion, either the Registration Statement or the
Prospectus as amended or supplemented or any amendment or supplement thereto
made by the Company prior to the date of such opinion (other than the financial
statements and related schedules therein, as to which such counsel need express
no opinion) contains an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances in which they were made, not
misleading; and he shall state that he does not know of any amendment to the
Registration Statement 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) Skadden, Arps, Slate, Meagher & Flom, special counsel for the
Company, or other counsel satisfactory to such Agent shall have furnished to
such Agent their written opinions, dated the Commencement Date and each
applicable date referred to in Section 4(j) hereof that is on or prior to such
Solicitation Time or Time of Delivery, as the case may be, in form and substance
satisfactory to such Agent, to the effect that:
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(i) The Indenture has been duly executed authorized and delivered by
the Company and is a valid and binding agreement, enforceable against the
Company in accordance with its terms, except to the extent that enforcement
thereof may be limited by (1) bankruptcy, insolvency, reorganization, fraudulent
transfer, moratorium or other similar laws now or hereafter in effect relating
to or affecting creditors' rights generally, (2) general principles of equity
(regardless of whether enforceability is considered in a proceeding at law or in
equity), (3) requirements that a claim with respect to any Securities
denominated other than in United States dollars (or a judgment denominated other
than in United States dollars in respect of such claim) be converted into United
States dollars at a rate of exchange prevailing on a date determined pursuant to
applicable law and (4) governmental authority to limit, delay or prohibit the
making of payments in foreign currencies or composite currencies or currency
units; and
(ii) The Securities, when executed and authenticated in accordance
with the terms of the Indenture, and issued, sold and delivered by the Company
pursuant to this Agreement against payment of the consideration set forth in
this Agreement, will be valid and binding obligations of the Company entitled to
the benefits of the Indenture and enforceable against the Company in accordance
with their terms, except to the extent that enforcement thereof may be limited
by (1) bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium
or similar laws now or hereafter in effect relating to or affecting creditors'
rights generally, (2) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity),
(3) requirements that a claim with respect to any Securities denominated other
than in United States dollars (or a judgment denominated in other than United
States dollars in respect of such claim) be converted into United States dollars
at a rate of exchange prevailing on a date determined pursuant to applicable law
and (4) governmental authority to limit, delay or prohibit the making of
payments in foreign currencies or composite currencies or currency units;
(e) (i) Not later than 10:00 a.m., New York City time, on the
Commencement Date and on each applicable date referred to in Section 4(k) hereof
that is on or prior to such Solicitation Time or Time of Delivery, as the case
may be, the independent certified public accountants who have audited the
financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement shall have furnished to
such Agent a
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letter, dated the Commencement Date or such applicable date, as the case may be,
in form and substance satisfactory to such Agent, to the effect set forth in
Annex III hereto;
(f) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus as amended or supplemented any loss
or interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented and (ii) since the
respective dates as of which information is given or incorporated by reference
in the Prospectus as amended or supplemented there shall not have been any
change in the capital stock or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a prospective change,
in or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Prospectus as
amended or supplemented, the effect of which, in any such case described in
clause (i) or (ii), is in the judgment of such Agent so material and adverse as
to make it impracticable or inadvisable to proceed with the solicitation by such
Agent of offers to purchase Securities from the Company or the purchase by such
Agent of Securities from the Company as principal, as the case may be, on the
terms and in the manner contemplated in the Prospectus as amended or
supplemented;
(g) There shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New
York Stock Exchange; (ii) a general moratorium on commercial banking activities
in New York declared by either Federal or New York State authorities; (iii) the
outbreak or material escalation of hostilities involving the United States or
the declaration by the United States of a national emergency or war, if the
effect of any such event specified in this clause (iii) in the judgment of such
Agent makes it impracticable or inadvisable to proceed with the solicitation of
offers to purchase Securities or the purchase of Securities from the Company as
principal, pursuant to the applicable Terms Agreement or otherwise, as the case
may be, on the terms and in the manner contemplated in the Prospectus as amended
or supplemented; (iv) any downgrading in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization", as
that term is defined by the Commission for purposes of Rule 436(g)(2)
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under the Act; or (v) any such "nationally recognized statistical rating
organization" shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company's
debt securities; and
(h) The Company shall have furnished or caused to be furnished to
such Agent certificates of officers of the Company dated the Commencement Date
and each applicable date referred to in Section 4(l) hereof that is on or prior
to such Solicitation Time or Time of Delivery, as the case may be, in such form
and executed by such officers of the Company as shall be satisfactory to such
Agent, as to the accuracy of the representations and warranties of the Company
herein at and as of the Commencement Date or such applicable date, as the case
may be, as to the performance by the Company of all of its obligations hereunder
to be performed at or prior to the Commencement Date or such applicable date, as
the case may be, as to the matters set forth in subsections (a) and (f) of this
Section 6, and as to such other matters as such Agent may reasonably request.
7. (a) The Company will indemnify and hold harmless each Agent
against any losses, claims, damages or liabilities, joint or several, to which
such Agent may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus, the Prospectus as amended or supplemented or any
other prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse such Agent for any
legal or other expenses reasonably incurred by it in connection with
investigating or defending any such action or claim as such expenses are
incurred; PROVIDED, HOWEVER, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement,
the Prospectus, the Prospectus as amended or supplemented or any other
prospectus relating to the Securities, or any such amendment or supplement, in
reliance upon and in conformity with written information furnished to the
Company by such Agent expressly for use therein; and PROVIDED FURTHER, that the
Company shall not be liable to such Agent under the indemnity
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agreement in this subsection (a) with respect to any Preliminary Prospectus to
the extent that any such loss, claim, damage or liability of such Agent results
from the fact such Agent sold Securities to a person to whom there was not sent
or given, at or prior to the written confirmation of such sale, a copy of the
Prospectus (excluding documents incorporated by reference) or of the Prospectus
as then amended or supplemented (excluding documents incorporated by reference)
in any case where such delivery is required by the Act if the Company has
previously furnished copies thereof to such Agent and the loss, claim, damage or
liability of such Agent results from an untrue statement or omission of a
material fact contained in the Preliminary Prospectus which was corrected in the
Prospectus (or the Prospectus as amended or supplemented).
(b) Each Agent will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any other prospectus relating to the
Securities, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any other prospectus relating to the
Securities, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by such Agent
expressly for use therein; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified
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party otherwise than under such subsection. In case any such action shall be
brought against any indemnified party and it shall notify the indemnifying party
of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation.
(d) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and each Agent on the
other from the offering of the Securities to which such loss, claim, damage or
liability (or action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and each Agent on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and each Agent on the other shall be deemed to be in the same
proportion as the total net proceeds from the sale of such Securities (before
deducting expenses) received by the Company bear to the total commissions or
discounts received by such Agent in respect thereof. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission
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or alleged omission to state a material fact relates to information supplied by
the Company on the one hand or by any Agent on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and each Agent agree that it
would not be just and equitable if contribution pursuant to this subsection (d)
were determined by per capita allocation (even if all Agents were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), an Agent shall not be required to contribute
any amount in excess of the amount by which the total public offering price at
which the Securities purchased by or through it were sold exceeds the amount of
any damages which such Agent has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of each of the
Agents under this subsection (d) to contribute are several in proportion to
their respective purchases made by or through it to which such loss, claim,
damage or liability (or action in respect thereof) relates and are not joint.
(e) The obligations of the Company under this Section 7 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Agent within the meaning of the Act; and the obligations of each Agent under
this Section 7 shall be in addition to any liability which such Agent may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company and to each person, if any, who controls the
Company within the meaning of the Act.
8. Each Agent, in soliciting offers to purchase Securities from the
Company and in performing the other obligations of such Agent hereunder (other
than in respect of any purchase by an Agent as principal, pursuant to a Terms
Agreement or otherwise) is acting solely as agent for the Company and not as
principal. Each Agent will make
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reasonable efforts to assist the Company in obtaining performance by each
purchaser whose offer to purchase Securities from the Company was solicited by
such Agent and has been accepted by the Company, but such Agent shall not have
any liability to the Company in the event such purchase is not consummated for
any reason. If the Company shall default on its obligation to deliver
Securities to a purchaser whose offer it has accepted, the Company shall
(i) hold each Agent harmless against any loss, claim or damage arising from or
as a result of such default by the Company and (ii) notwithstanding such
default, pay to the Agent that solicited such offer any commission to which it
would be entitled in connection with such sale.
9. The respective indemnities, agreements, representations,
warranties and other statements by any Agent and the Company set forth in or
made pursuant to this Agreement shall remain in full force and effect regardless
of any investigation (or any statement as to the results thereof) made by or on
behalf of any Agent or any controlling person of any Agent, or the Company, or
any officer or director or any controlling person of the Company, and shall
survive each delivery of and payment for any of the Securities.
10. The provisions of this Agreement relating to the solicitation of
offers to purchase Securities from the Company may be suspended or terminated at
any time by the Company as to any Agent or by any Agent as to such Agent upon
the giving of written notice of such suspension or termination to such Agent or
the Company, as the case may be. In the event of any such termination or
suspension, no party will have any liability, duty or obligation to any other
party hereto, except that (x) this Agreement shall remain in full force and
effect with respect to any Agent as to which such suspension or termination has
not occurred, (y) this Agreement shall remain in full force and effect with
respect to the rights and obligations of any party which have previously accrued
or which relate to Securities which are already issued, agreed to be issued or
the subject of a pending offer at the time of such suspension or termination and
(z) in any event, this Agreement shall remain in full force and effect insofar
as the fourth paragraph of Section 2(a), Section 4(d), Section 4(e), Section 5,
Section 7, Section 8 and Section 9 hereof are concerned.
11. Except as otherwise specifically provided herein or in the
Administrative Procedure, all statements, requests, notices and advices
hereunder shall be in writing, or by telephone if promptly confirmed in writing,
and if to Goldman, Sachs & Co. shall be sufficient in all respects
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when delivered or sent by facsimile transmission or registered mail to 85 Broad
Street, New York, New York 10004, Facsimile Transmission No. (212) 902-4103,
Attention: Registration Department; if to Morgan Stanley & Co., Incorporated
shall be sufficient in all respects when delivered or sent by facsimile
transmission or registered mail to 1221 Avenue of the Americas, 4th Floor, New
York, NY 10020, Facsimile Transmission No. (212) 764-7490, Attention: Managing
Director, Debt Syndicate, with a copy to 1251 Avenue of the Americas, New York,
New York, Attention: Manager Credit Department; and if to the Company shall be
sufficient in all respects when delivered or sent by facsimile transmission or
registered mail to it at its address set forth in the Prospectus.
12. This Agreement and any Terms Agreement shall be binding upon, and
inure solely to the benefit of, each Agent and the Company, and to the extent
provided in Section 7, Section 8 and Section 9 hereof, the officers and
directors of the Company and any person who controls any Agent or the Company,
and their respective personal representatives, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any Terms Agreement. No purchaser of any of the Securities through
or from any Agent hereunder shall be deemed a successor or assign by reason of
such purchase.
13. Time shall be of the essence in this Agreement and any Terms
Agreement. As used herein, the term "business day" shall mean any day when the
office of the Commission in Washington, D.C. is open for business.
14. THIS AGREEMENT AND ANY TERMS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
15. This Agreement and any Terms Agreement may be executed by any one
or more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all of such respective counterparts
shall together constitute one and the same instrument.
16. This Agreement may be amended or supplemented if, but only if,
such amendment or supplement is in writing and is signed by the Company and each
Agent; PROVIDED that the Company may from time to time, on 15 days prior written
notice to the Agents but without the consent of any Agent, amend this Agreement
to add as a party hereto one or more additional firms registered under the
Exchange Act, whereupon each such firm shall become an Agent hereunder on
-30-
<PAGE>
substantially the same terms and conditions as the other Agents that are parties
hereto. Each Agent shall sign any amendment or supplement giving effect to the
addition of any such firm as an Agent under this Agreement or shall terminate
the provisions of this Agreement relating to the solicitation of offers to
purchase Securities from the Company pursuant to Section 10 with respect to such
Agent.
-31-
<PAGE>
If the foregoing is in accordance with your understanding, please sign
and return to us five counterparts hereof, whereupon this letter and the
acceptance by each of you thereof shall constitute a binding agreement between
the Company and each of you in accordance with its terms.
Very truly yours,
UNUM CORPORATION
By:
----------------------------------------
Name:
Title:
Accepted in New York, New York,
as of the date hereof:
- ---------------------------------
(Goldman, Sachs & Co.)
MORGAN STANLEY & CO. INCORPORATED
By:
----------------------------
Name:
Title:
-32-
<PAGE>
ANNEX I
UNUM CORPORATION
Medium-Term Notes, Series C
TERMS AGREEMENT
___________, 199_
[Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004]
[Morgan Stanley & Co. Incorporated
1251 Avenue of the Americas
New York, New York 10020]
Dear Sirs:
UNUM Corporation (the "Company") proposes, subject to
the terms and conditions stated herein and in the Distribution
Agreement, dated July __, 1996 (the "Distribution Agreement"),
between the Company on the one hand and Goldman, Sachs & Co. and
Morgan Stanley & Co. Incorporated (the "Agents"), on the other,
to issue and sell to [Goldman, Sachs & Co.] [Morgan Stanley & Co.
Incorporated] the securities specified in the Schedule hereto
(the "Purchased Securities"). Each of the provisions of the
Distribution Agreement not specifically related to the
solicitation by the Agents, as agents of the Company, of offers
to purchase Securities is incorporated herein by reference in its
entirety, and shall be deemed to be part of this Terms Agreement
to the same extent as if such provision had been set forth in
full herein. Nothing contained herein or in the Distribution
Agreement shall make any party hereto an agent of the Company or
make such party subject to the provisions therein relating to the
solicitation of offers to purchase securities from the Company,
solely by virtue of its execution of this Terms Agreement. Each
of the representations and warranties set forth therein shall be
deemed to have been made at and as of the date of this Terms
Agreement, except that each representation and warranty in
Section 1 of the Distribution Agreement which makes reference to
the Prospectus shall be deemed to be a representation and
warranty as of the date of the Distribution Agreement in relation
to the Prospectus (as therein defined), and also a representation
and warranty as of the date of this Terms Agreement in relation
to the Prospectus as amended and supplemented to relate to the
Purchased Securities.
An amendment to the Registration Statement, or a
supplement to the Prospectus, as the case may be, relating to the
<PAGE>
Purchased Securities, in the form heretofore delivered to you is
now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein
and in the Distribution Agreement incorporated herein by
reference, the Company agrees to issue and sell to [Goldman,
Sachs & Co.] [Morgan Stanley & Co. Incorporated] and [Goldman,
Sachs & Co.] [Morgan Stanley & Co. Incorporated] agree[s] to
purchase from the Company the Purchased Securities, at the time
and place, in the principal amount and at the purchase price set
forth in the Schedule hereto.
The Company agrees that from the date of this Terms
Agreement by [Goldman, Sachs & Co.] [Morgan Stanley & Co. Incor-
porated] to purchase Securities as principal and continuing to
and including the earlier of (i) the termination of the trading
restrictions for the Securities purchased hereunder, as notified
to the Company by such Agent[s] and (ii) the related Time of
Delivery, the Company will not, without the prior written consent
of such Agent[s], offer, sell, contract to sell or otherwise
dispose of any debt securities of the Company which both mature
more than 9 months after such Time of Delivery and are
substantially similar to the Securities [other than debt
securities which the Company has previously contracted to sell
pursuant to the following contracts: [list contracts]].
Defined terms used herein and not defined herein shall
have the meaning given such terms in the Distribution Agreement.
If the foregoing is in accordance with your under-
standing, please sign and return to us three (3) counterparts
hereof, and upon acceptance hereof by you this letter and such
acceptance hereof, including those provisions of the Distribution
Agreement incorporated herein by reference, shall constitute a
binding agreement between you and the Company.
UNUM CORPORATION
By:___________________
Accepted:
[____________________________]
(Goldman, Sachs & Co.)
[MORGAN STANLEY & CO. INCORPORATED
By:___________________________]
-2-
<PAGE>
Schedule to Annex I
Title of Purchased Securities:
[[ %] Medium-Term Notes, Series C]
Aggregate Principal Amount:
[$ or units of other Specified Currency]
[Price to Public:]
Purchase Price by [Goldman, Sachs & Co.] [Morgan Stanley & Co.
Incorporated]
% of the principal amount of the Purchased
Securities[, plus accrued interest from to ]
[and accrued amortization, if any, from to ]
Method of and Specified Funds for Payment of Purchase Price:
[By certified or official bank check or checks, payable to
the order of the Company, in [[New York] Clearing House]
[immediately available] funds]
[By wire transfer to a bank account specified by the Company
in [next day] [immediately available] funds]]
Indenture:
Indenture, dated as of September 15, 1990, between the
Company and The Chase Manhattan Bank (National Association),
as Trustee
Time of Delivery:
Closing Location:
Maturity:
-3-
<PAGE>
Interest Rate [and Formula]:
[ %]
Interest Payment Dates:
[months and dates]
Documents to be Delivered:
The following documents referred to in the Distribution
Agreement shall be delivered as a condition to the Closing:
[(l) The opinion or opinions of counsel to the Agents
referred to in Section 4(h).]
[(2) The opinions of counsel to the Company referred to
in Sections 4(i) and 4(j).]
[(4) The accountants' letter referred to in
Section 4(k).]
[(5) The officers' certificate referred to in
Section 4(1).]
Other Provisions:
-4-
<PAGE>
ANNEX II
UNUM Corporation
ADMINISTRATIVE PROCEDURE
This Administrative Procedure relates to the Securities defined in the
Distribution Agreement, dated July __, 1996 (the "Distribution Agreement"),
between UNUM Corporation (the "Company") and Goldman, Sachs & Co. and Morgan
Stanley & Co. Incorporated (together, the "Agents"), to which this
Administrative Procedure is attached as Annex II. Defined terms used herein and
not defined herein shall have the meanings given such terms in the Distribution
Agreement, the Prospectus as amended or supplemented or the Indenture.
The procedures to be followed with respect to the settlement of sales
of Securities directly by the Company to purchasers solicited by an Agent, as
agent, are set forth below. Part I describes procedures of general
applicability with respect to such Securities. Part II below describes
procedures specifically and exclusively applicable (any procedure in Part I
below to the contrary notwithstanding) to such Securities which are either
Global Certificates or Book-Entry Securities (each as defined below). The terms
and settlement details related to a purchase of Securities by an Agent, as
principal, from the Company will be set forth in a Terms Agreement pursuant to
the Distribution Agreement, unless the Company and such Agent otherwise agree as
provided in Section 2(b) of the Distribution Agreement, in which case the
procedures to be followed in respect of the settlement of such sale will be as
set forth below. An Agent, in relation to a purchase of a Security by a
purchaser solicited by such Agent, is referred to herein as the "Selling Agent"
and, in relation to a purchase of a Security by such Agent as principal other
than pursuant to a Terms Agreement, as the "Purchasing Agent".
The Company will advise each Agent in writing of those persons with
whom such Agent is to communicate regarding offers to purchase Securities and
the related settlement details.
Unless otherwise specified in the applicable Pricing Supplement, each
Security will be issued only in fully registered form and will be initially
represented by either a permanent global certificate (a "Global Certificate")
delivered to the Trustee, as agent for The Depository Trust Company (the
"Depository") or a certificate (a "Definitive Certificate") delivered to a
person designated by an Agent. Each security which is represented by a Global
Certificate is referred to herein as a "Book-Entry Security" (it being
understood that only such Global Certificate -- and not any such Book-Entry
Security represented thereby -- constitutes a "Security" under the Indenture).
<PAGE>
Pursuant to Sections 301 and 1002 of the Indenture, the Company has
appointed The Chase Manhattan Bank (National Association) as Paying Agent (the
"Paying Agent") and as Calculation Agent (the "Calculation Agent") for the
Securities. In addition, the Company has appointed The Chase Manhattan Bank
(National Association) as its agent (the "Issuing Agent") in connection with
certain procedures to be followed with respect to the settlement of sales of
Securities, as set forth herein.
PART I: PROCEDURES OF APPLICABILITY TO BOTH CERTIFICATED
SECURITIES AND BOOK-ENTRY SECURITIES
POSTING RATES BY THE COMPANY:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Securities that may be
sold as a result of the solicitation of offers by an Agent. The Company may
establish a fixed set of interest rates and maturities for an offering period
("posting"). If the Company decides to change already posted rates, it will
promptly advise the Agents to suspend solicitation of offers until the new
posted rates have been established with the Agents.
ACCEPTANCE OF OFFERS BY THE COMPANY:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Securities, other than
those rejected by such Agent. Each Agent may, in its discretion reasonably
exercised, reject any offer received by it in whole or in part. Each Agent also
may make offers to the Company to purchase Securities as a Purchasing Agent.
The Company will have the sole right to accept offers to purchase Securities and
may reject any such offer in whole or in part.
The Company will promptly notify the Selling Agent or Purchasing
Agent, as the case may be, of its acceptance or rejection of an offer to
purchase Securities. If the Company accepts an offer to purchase Securities, it
will confirm such acceptance in writing to the Selling Agent or Purchasing
Agent, as the case may be, and the Trustee.
COMMUNICATION OF SALE INFORMATION
TO THE COMPANY BY SELLING AGENT:
After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will communicate the following details of
the terms of such offer (the "Sale Information") to the Company by telephone
(confirmed in
II-2
<PAGE>
writing) or by facsimile transmission or other acceptable written means:
(1) Principal amount of Securities to be purchased;
(2) Identification as a Fixed Rate Security, Floating Rate Security
or Zero Coupon Security;
(3) If a Fixed Rate Security, the interest rate and the initial
interest payment date;
(4) Maturity Date;
(5) Specified Currency and, if the Specified Currency is other than
U.S. dollars, the applicable Exchange Rate for such Specified
Currency;
(6) Issue Price;
(7) Selling Agent's commission or Purchasing Agent's discount, as the
case may be;
(8) Net proceeds to the Company;
(9) Settlement Date;
(10) If a Security is redeemable by the Company, such of the following
as are applicable:
(i) Redemption Commencement Date,
(ii) Redemption Prices (% of par) and Redemption Periods,
(iii) The Repayment Date and the Repayment Price, and
(iv) Amount (% of par) that the Redemption Price shall decline
(but not below par) on each anniversary of the Redemption
Commencement Date;
(11) If a Floating Rate Security, such of the following as are
applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Interest Rate,
(v) Minimum Interest Rate,
(vi) Initial Interest Rate,
II-3
<PAGE>
(vii) Interest Rate Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(12) If the amount of principal payable on a Security will be
determined by reference to an index or formula, a full
description of such index or formula;
(13) If an OID Note, the total amount of OID, the Yield to Maturity
and the initial accrual period of OID;
(14) Name, address and taxpayer identification number of the
registered owner;
(15) Denomination of certificates to be delivered at settlement; and
(16) Book-Entry Security or Certificated Security.
PREPARATION OF PRICING SUPPLEMENT BY THE COMPANY:
If the Company accepts an offer to purchase a Security, it will
prepare a Pricing Supplement. The Company will supply at least ten copies of
such Pricing Supplement to the Selling Agent or Purchasing Agent, as the case
may be, not later than 5:00 p.m., New York City time, on the business day
following the date of acceptance of such offer, or if the Company and the
purchaser agree to settlement on the date of such acceptance, not later than
noon, New York City time, on such date. The Company will arrange to have each
Pricing Supplement filed with the Commission under Rule 424(b) not later than
the close of business of the Commission on the fifth business day (or such other
date Rule 424 shall require) following the date on which such Pricing Supplement
is first used. One copy of such filed document will be sent by telecopy or
overnight express (for delivery not later than 11:00 A.M. on the Business Day
next following the trade date) to the Selling Agent or the Purchasing Agent, as
the case may be, at the following applicable addresses: Goldman, Sachs & Co.,
85 Broad Street, New York, New York 10004, Facsimile Transmission No. (212)
902-4103, Attention: Don Hansen, Registration, 18th Floor; Morgan Stanley & Co.
Incorporated, 1221 Avenue of the Americas, New York, New York, 10020, Facsimile
Transmission: (212) 764-7490, Attention: Managing Director, Debt Syndicate.
II-4
<PAGE>
DELIVERY OF CONFIRMATION AND
PROSPECTUS TO PURCHASER BY SELLING AGENT:
The Selling Agent will deliver to the purchaser of a Security a
written confirmation of the sale and delivery and payment instructions. In
addition, the Selling Agent will deliver to such purchaser or its agent the
Prospectus as amended or supplemented (including the Pricing Supplement) in
relation to such Security prior to or together with the earlier of the delivery
to such purchaser or its agent of (a) the confirmation of sale (including, in
the case of a Book-Entry Security, the confirmation through the Depository's
Institutional Delivery System) or (b) the Security.
DATE OF SETTLEMENT:
All offers solicited by a Selling Agent or made by a Purchasing Agent
and accepted by the Company will be settled on a date (the "Settlement Date")
which is the third business day after the date of acceptance of such offer,
unless the Company and the purchaser agree to settlement (a) on any other
business day after the acceptance of such offer or (b) with respect to an offer
accepted by the Company prior to 10:00 a.m., New York City time, on the date of
such acceptance.
INSTRUCTION FROM THE COMPANY TO
ISSUING AGENT FOR PREPARATION OF SECURITIES:
After receiving the Sale Information from the Selling Agent or
Purchasing Agent, as the case may be, the Company will communicate such Sale
Information to the Issuing Agent by telephone (confirmed in writing) or by
facsimile transmission or other acceptable written means.
The Company will instruct the Issuing Agent by facsimile transmission
or other acceptable written means to authenticate and deliver the Securities no
later than 2:15 p.m., New York City time, on the Settlement Date. Such
instruction will be given by the Company prior to 2:00 p.m., New York City time,
on the second business day prior to the Settlement Date unless, in the case of
Securities evidenced by a Definitive Certificate, the Settlement Date is the
date of acceptance by the Company of the offer to purchase such Securities in
which case such instruction will be given by the Company by 11:00 a.m., New York
City time. The Trustee will authenticate and deliver to the Issuing Agent each
Security in accordance with the Company's instructions.
II-5
<PAGE>
PREPARATION AND DELIVERY OF SECURITIES
BY ISSUING AGENT AND RECEIPT OF PAYMENT THEREFOR:
The Issuing Agent will prepare each Security and appropriate receipts
that will serve as the documentary control of the transaction.
In the case of a sale of Securities to a purchaser solicited by an
Agent, the Issuing Agent will, by 2:15 p.m., New York City time, on the
Settlement Date, deliver the Securities to the Selling Agent for the benefit of
the purchaser of such Securities against delivery by the Selling Agent of a
receipt therefor. On the Settlement Date the Selling Agent will deliver payment
for such Securities in immediately available funds to the Company in an amount
equal to the issue price of the Securities less the Selling Agent's commission;
provided that the Selling Agent reserves the right to withhold payment for which
it has not received funds from the purchaser. The Company shall not use any
proceeds advanced by a Selling Agent to purchase securities or carry any
securities in violation of Regulations G, T, U or X of the Federal Reserve Board
or otherwise in violation of law.
In the case of a sale of Securities to a Purchasing Agent, the Issuing
Agent will, by 2:15 p.m., New York City time, on the Settlement Date, deliver
the Securities to the Purchasing Agent against delivery by the Purchasing Agent
of a receipt therefor. On the Settlement Date the Purchasing Agent will deliver
payment for such Securities in immediately available funds to the Company in an
amount equal to the issue price of the Securities less the Purchasing Agent's
discount.
FAILURE OF PURCHASER TO PAY SELLING AGENT:
If a purchaser (other than a Purchasing Agent) fails to make payment
to the Selling Agent for a Security or the Selling Agent fails to make payment
to the Company, the Selling Agent will promptly notify the Trustee and the
Company thereof by telephone (confirmed in writing) or by facsimile transmission
or other acceptable written means. The Selling Agent will immediately return
the Security to the Issuing Agent. Immediately upon receipt of such Security by
the Issuing Agent, the Company will return to the Selling Agent an amount equal
to the amount previously paid to the Company in respect of such Security. The
Company will reimburse the Selling Agent on an equitable basis for its loss of
the use of funds during the period when they were credited to the account of the
Company.
The Issuing Agent will cancel the Security in respect of which the
failure occurred, make appropriate entries in its records and, unless otherwise
instructed by the Company, destroy the Security.
II-6
<PAGE>
PART II: PROCEDURES APPLICABLE TO BOOK-ENTRY
SECURITIES AND GLOBAL CERTIFICATES
In connection with the qualification of Book-Entry Securities for
eligibility in the book-entry system maintained by the Depository, the Trustee
and the Paying Agent will perform the custodial, document control and
administrative functions described below, in accordance with their respective
obligations under a Letter of Representations from the Company and the Trustee
to the Depository, dated July __, 1996, and a Medium-Term Note Certificate
Agreement, dated March 10, 1989, between The Chase Manhattan Bank (National
Association) and the Depository (the "Certificate Agreement"), and the
obligations of the Trustee as a participant in the Depository, including the
Depository's Same-Day Funds Settlement System ("SDFS"). It is understood that
the ownership interests of purchasers of Book-Entry Securities will be credited
to the book-entry accounts of one or more participants in the Depository (each a
"Participant") in accordance with the Depository's customary practices and
reflected in the records of such Participants or one or more indirect
Participants in the Depository designated by such purchasers in accordance with
the arrangements between such purchasers and such Participants and indirect
participants. As used in this Part II, the term "Business Day" means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in The City of New York are authorized or obligated by law
or executive order to close.
Issuance: All Fixed Rate Securities which are Book-Entry
Securities and have the same Original Issue Date,
redemption provisions, Interest Payment Dates, interest
rate, interest payment periods and Stated Maturity
(collectively, the "Fixed Rate Terms") will be
represented initially by a single Global Certificate in
fully registered form without coupons; all Floating
Rate Securities which are Book-Entry Securities and
have the same Original Issue Date, redemption
provisions, Interest Payment Dates, interest payment
periods, Interest Rate Basis, Initial Interest Rate,
Index Maturity, Spread or Spread Multiplier, if any,
Minimum Interest Rate, if any, Maximum Interest Rate,
if any, and Stated Maturity (collectively, the
"Floating Rate Terms") will be represented initially by
a single Global Certificate in fully registered form
without coupons; and all Zero Coupon
II-7
<PAGE>
Securities which are Book-Entry Securities and have the
same Original Issue Date, redemption provisions, Yield
to Maturity, Specified Currency and Stated Maturity
(collectively, the "Zero Coupon Terms") will be
represented initially by a single Global Certificate in
fully registered form without coupons.
Identification: The Company has arranged with the CUSIP Service Bureau
of Standard & Poor's Corporation (the "CUSIP Service
Bureau") for the reservation of approximately 900 CUSIP
numbers which have been reserved for future assignment
and relating to Book-Entry Securities, and the Company
has delivered to the Issuing Agent and the Depository
such list of such CUSIP numbers. The Company will
assign CUSIP numbers to Global Certificates
representing Book-Entry Securities as described below
under Settlement Procedure C. The Depository will
notify the CUSIP Service Bureau periodically of the
CUSIP numbers that the Company has assigned to Global
Certificates representing Book-Entry Securities. The
Trustee will notify the Company at any time when fewer
than 100 of the reserved CUSIP numbers remain
unassigned to Global Certificates representing Book-
Entry Securities, and, if it deems necessary, the
Company will reserve additional CUSIP numbers for
assignment to Global Certificates representing
Book-Entry Securities. Upon obtaining such additional
CUSIP numbers, the Company will deliver a list of such
additional numbers to the Issuing Agent and the
Depository. Book-Entry Securities having an aggregate
principal amount in excess of $200,000,000 and
otherwise required to be represented by the same Global
Certificate will instead be represented by two or more
Global Certificates which shall all be assigned the
same CUSIP number.
Registration: Each Global Certificate will be registered in the name
of Cede & Co., as
II-8
<PAGE>
nominee for the Depository, on the Security Register
maintained by the Trustee under the Indenture. On the
first Business Day of each month, the Trustee will
deliver to the Company a written statement indicating
the total principal amount of Outstanding Book-Entry
Securities as of the immediately preceding Business
Day.
Transfers: Transfers of interests in a Book-Entry Security will be
effected in accordance with arrangements in effect
between Participants (and in certain cases, one or more
indirect participants in the Depository) and the
beneficial transferors and beneficial transferees of
such Book-Entry Security, and the interests of
Participants therein will be reflected as appropriate
by book entries made by the Depository.
Exchanges: The Issuing Agent may deliver to the Depository and the
CUSIP Service Bureau at any time a written notice
specifying (a) the CUSIP numbers of two or more Global
Certificates (i) having the same Fixed Rate Terms,
Floating Rate Terms or Zero Coupon Terms, as the case
may be (except that Original Issue Dates need not be
the same), (ii) for which interest (if any) has been
paid to the same date and (iii) which otherwise
constitute Securities of the same series and tenor
under the Indenture; (b) a date, occurring at least 30
days after such written notice is delivered and at
least 30 days before the next Interest Payment Date (if
any) for such Book-Entry Securities, on which such
Global Certificates shall be exchanged for a single
replacement Global Certificate; and (c) a new CUSIP
number, obtained from the Company, to be assigned to
such replacement Global Certificate. Upon receipt of
such a notice, the Depository will send to its
participants (including the Issuing Agent) a written
reorganization notice to the effect that such exchange
will occur on such date. Prior to the specified
exchange date, the Issuing
II-9
<PAGE>
Agent will deliver to the CUSIP Service Bureau written
notice setting forth such exchange date and the new
CUSIP number and stating that, as of such exchange
date, the CUSIP numbers of the Global Certificates to
be exchanged will no longer be valid. On the specified
exchange date, the Issuing Agent will exchange such
Global Certificates for a single Global Certificate
authenticated by the Trustee and bearing the new CUSIP
number, and the CUSIP numbers of the exchanged Global
Certificates will, in accordance with CUSIP Service
Bureau procedures, be retired and not reassigned.
Notwithstanding the foregoing, if the Global
Certificates to be exchanged exceed $200,000,000 in
aggregate principal amount, one replacement Global
Certificate will be authenticated and issued to
represent each $200,000,000 of principal amount of the
exchanged Global Certificates and an additional Global
Certificate will be authenticated and issued to
represent any remaining principal amount of such Global
Certificates (see "Denominations" below).
Denominations: All Book-Entry Securities will be denominated in U.S.
dollars. Book-Entry Securities will be issued in
denominations of $100,000 and any larger denomination
which is an integral multiple of $1,000. Global
Certificates will be denominated in principal amounts
not in excess of $200,000,000. If one or more
Book-Entry Securities having an aggregate principal
amount in excess of $200,000,000 would, but for the
preceding sentence, be represented by a single Global
Certificate, then one Global Certificate will be issued
to represent each $200,000,000 principal amount of such
Book-Entry Security or Book-Entry Securities and an
additional Global Certificate will be issued to
represent any remaining principal amount of such
Book-Entry Security or Book-Entry Securities. In such
a case, each of the Global Certificates representing
such Book-Entry Security or Securities
II-10
<PAGE>
shall be assigned the same CUSIP number.
Interest: GENERAL. The Depository will arrange for each pending
deposit message described under Settlement Procedure C
below to be transmitted to Standard & Poor's
Corporation, which will use the message to include
certain information regarding the related Book-Entry
Notes in the appropriate daily bond report published by
Standard & Poor's Corporation.
NOTICE OF INTEREST PAYMENTS AND REGULAR RECORD DATES.
On the first Business Day of January, April, July and
October of each year, the Paying Agent will deliver to
the Company and to the Dividend Department of the
Depository a written list of Regular Record Dates and
Interest Payment Dates that will occur during the
six-month period beginning on such first Business Day
with respect to Global Certificates representing Book-
Entry Securities which are Floating Rate Notes.
Promptly after each Interest Determination Date for
Book-Entry Securities which are Floating Rate Notes,
the Calculation Agent will notify Standard & Poor's
Corporation of the interest rates determined on such
Interest Determination Date.
Payments of Principal
and Interest: PAYMENTS OF INTEREST ONLY. Promptly after each Regular
Record Date, the Paying Agent will deliver to the
Company and the Dividend Department of the Depository a
written notice specifying by CUSIP number the amount of
interest (if any) to be paid on each Global Certificate
representing Book-Entry Securities on the following
Interest Payment Date (other than an Interest Payment
Date coinciding with the Maturity of such Certificate)
and the total of such amounts. The Depository will
confirm the amount payable (if any) on each Global
Certificate representing Book-Entry Securities on such
Interest Payment Date by reference to the daily
II-11
<PAGE>
bond reports published by Standard & Poor's
Corporation. On such Interest Payment Date the Company
will pay to the Paying Agent, and the Paying Agent in
turn will pay to the Depository, such total amount of
interest due (other than at Maturity of such
Certificate), at the times and in the manner set forth
below under "Manner of Payment". If an Interest
Payment Date for a Book-Entry Note is not a Business
Day, the payment due on such day shall be made on the
next succeeding Business Day and no interest shall
accrue on such payment for the period from and after
such Interest Payment Date.
PAYMENTS AT MATURITY OR UPON REDEMPTION. On or about
the first Business Day of each month, the Paying Agent
will deliver to the Company and the Depository a
written list of principal, premium, if any, and
interest to be paid on each Global Certificate
representing Book-Entry Securities maturing either at
Stated Maturity or on a Redemption Date or otherwise
("Maturity") in the following month. The Paying Agent,
the Company and the Depository will confirm the amounts
of such principal, premium (if any) and interest
payments with respect to each such Global Certificate
representing Book-Entry Securities on or about the
fifth Business Day preceding the Maturity of such
Global Certificate representing Book-Entry Securities.
At such Maturity, the Company will pay to the Paying
Agent, and the Paying Agent in turn will pay to the
Depository, the principal amount of such Global
Certificate representing Book-Entry Securities,
together with interest and premium, if any, due at such
Maturity, at the times and in the manner set forth
below under "Manner of Payment". Promptly after
payment to the Depository of the principal, interest
and premium, if any, due at the Maturity of all Book-
Entry Securities represented by a particular Global
Certificate, the Paying Agent will deliver to the
Trustee for
II-12
<PAGE>
cancellation such Global Certificate.
MANNER OF PAYMENT. The total amount of principal,
premium and interest due on Global Securities
representing Book-Entry Securities on any Interest
Payment Date or at Maturity shall be paid by the
Company to the Paying Agent, in funds immediately
available for use by the Trustee as of 9:30 a.m., New
York City time, on such date. The Company will make
such payment on such Global Certificates representing
Book-Entry Securities by wire transfer to the Paying
Agent or by instructing the Paying Agent to withdraw
funds from an account maintained by the Company at the
Paying Agent. The Company will confirm such
instructions in writing to the Paying Agent. For
principal payments at Maturity, prior to 10:00 a.m.,
New York City time, on such Maturity or as soon as
possible thereafter after receipt of such funds from
the Company, the Paying Agent will pay by separate wire
transfer (using Fedwire message entry instructions in a
form previously specified by the Depository) to an
account at the Federal Reserve Bank of New York
previously specified by the Depository, in funds
available for immediate use by the Depository, each
payment of interest, principal and premium, if any, due
on Global Certificates representing Book-Entry
Certificates on such date; and for interest payments,
the Paying Agent will pay the Depository in same-day
funds on the Interest Payment Date in accordance with
existing arrangements between the Paying Agent and the
Depository. Thereafter on each such date, the
Depository will pay, in accordance with its SDFS
operating procedures then in effect, such amounts in
funds available for immediate use to the respective
Participants in whose names such Book-Entry Securities
are recorded in the book-entry system maintained by the
Depository. Once payment has been made to the
Depository, neither the Company, the Trustee nor the
Paying Agent shall
II-13
<PAGE>
have any responsibility or liability for the payment by
the Depository of the principal of, or premium, if any,
or interest on, the Book-Entry Securities to such
Participants.
WITHHOLDING TAXES. The amount of any taxes required
under applicable law to be withheld from any interest
payment on a Book-Entry Security will be determined and
withheld by the Participant, indirect participant in
the Depository or other Person responsible for
forwarding payments and materials directly to the
beneficial owner of such Book-Entry Security, or as
applicable law may otherwise require.
Settlement Procedures: Settlement Procedures with regard to each Book-Entry
Security sold by each Agent, as agent of the Company,
will be as follows:
A. After the acceptance of an offer by the Company
with respect to a Book-Entry Security, the Selling
Agent or Purchasing Agent, as the case may be,
will communicate the following details of the
terms of such offer (the "Book-Entry Sale
Information") to the Company by telephone
confirmed in writing or by facsimile transmission
or other acceptable written means:
(1) Principal amount of the Book-Entry Security
to be purchased;
(2) Identification as a Fixed Rate Security,
Floating Rate Security or Zero Coupon
Security;
(3) If a Fixed Rate Security, the interest rate
and the initial interest payment date;
(4) Maturity Date;
(5) Issue Price;
II-14
<PAGE>
(6) Selling Agent's commission or Purchasing
Agent's discount, as the case may be;
(7) Net proceeds to the Company;
(8) Settlement Date;
(9) If a redeemable Security, such of the
following as are applicable:
(i) Redemption Commencement Date,
(ii) Redemption Prices (% of par) and
Redemption Periods,
(iii) the Repayment Date and the
Repayment Price, and
(iv) Amount (% of par) that the
Redemption Price shall decline (but
not below par) on each anniversary
of the Redemption Commencement
Date;
(10) If a Floating Rate Security, such of the
following as are applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Interest Rate,
(v) Minimum Interest Rate,
(vi) Initial Interest Rate,
II-15
<PAGE>
(vii) Interest Rate Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(11) If the amount of principal payable on a
Security will be determined by reference to
an index or formula, a full description of
such index or formula;
(12) If an OID Note, the total amount of OID, the
Yield to Maturity and the initial accrual
period of OID;
(13) The taxpayer identification number of the
purchaser; and
(14) Identification numbers of the participant
accounts maintained by the Depository on
behalf of such Agent.
B. Upon receiving the Book-Entry Sale Information
from the Selling Agent or the Purchasing Agent, as
the case may be, the Company will assign a CUSIP
number to the Global Certificate representing the
Book-Entry Security and the Company and will
advise the Issuing Agent by telephone (confirmed
by facsimile or electronic transmission) of the
Book-Entry Sale Information received from the
Selling Agent or the Purchasing Agent, as the case
may be, and the name of such Agent.
II-16
<PAGE>
C. The Trustee will enter through the Depository
Terminal System, a pending deposit message (the
form of which has been previously furnished to the
Issuing Agent by the Depository) specifying the
following settlement information, which
information will be communicated to the
Depository, such Agent and Standard & Poor's
Corporation:
1. Book-Entry Sale Information.
2. Identification as a Fixed Rate Security,
Floating Rate Security or Zero Coupon
Security.
3. Initial Interest Payment Date for such
Security, number of days by which such date
succeeds the related record date for
Depository purposes (or, in the case of
Floating Rate Notes which reset daily or
weekly, the date five calendar days preceding
such Initial Interest Payment Date) and, if
then calculable, the amount of interest
payable on such Initial Interest Payment Date
(which amount shall have been confirmed by
the Trustee).
4. CUSIP number of the Global Certificate
representing such Book-Entry Security.
5. Whether such Global Certificate will
represent any other Book-Entry Securities
issued or to be issued (to the extent then
known).
D. The Company will instruct the Issuing Agent by
facsimile transmission or other acceptable written
means to complete and authenticate such Global
Certificate, and to register such Global
Certificate in
II-17
<PAGE>
the name of Cede & Co., as nominee of the
Depository.
E. The Issuing Agent will complete and authenticate
the Global Certificate representing such
Book-Entry Security, register such Global
Certificate in the name of Cede & Co., as nominee
of the Depository. The Trustee will take delivery
thereof as agent for the Depository.
F. The Depository will credit such Book-Entry
Security to the participant account of the Issuing
Agent maintained by the Depository.
G. The Issuing Agent will enter an SDFS deliver order
through the Depository's Participant Terminal
System instructing the Depository (i) to debit
such Book-Entry Security to the Issuing Agent's
participant account and credit such Book-Entry
Security to the participant account of the Selling
Agent or the Purchasing Agent, as the case may be,
maintained by the Depository and (ii) to debit the
settlement account of the Selling Agent or the
Purchasing Agent, as the case may be, and credit
the settlement account of the Issuing Agent
maintained by the Depository, in an amount equal
to the price of such Book-Entry Security less such
Agent's commission or discount, as the case may
be. Any entry of such a deliver order shall be
deemed to constitute a confirmation by the Trustee
and the Issuing Agent to the Depository that (i)
the Global Certificate representing such Book-
Entry Security has been issued and authenticated
and (ii) the Issuing Agent is holding such Global
Certificate as agent of the Depository pursuant to
the Certificate Agreement.
II-18
<PAGE>
H. The Selling Agent or the Purchasing Agent, as the
case may be, will enter an SDFS deliver
instruction through the Depository's Participant
Terminal System instructing the Depository (i) to
debit such Book-Entry Security to the participant
account of such Agent and credit such Book-Entry
Security to the participant accounts of the
Participants with respect to such Book-Entry
Security maintained by the Depository and (ii) to
debit the settlement accounts of such Participants
and credit the settlement account of such Agent
maintained by the Depository in an amount equal to
the price of such Book-Entry Security.
I. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures G and H
will be settled in accordance with SDFS operating
procedures in effect on the Settlement Date.
J. The Issuing Agent will credit to an account of the
Company maintained at the Issuing Agent funds
available for immediate use in the amount
transferred to the Issuing Agent in accordance
with Settlement Procedure G.
K. The Issuing Agent will send a copy of the Global
Certificate by first-class mail to the Company
together with a statement setting forth the
principal amount of Global Certificates
representing the Book-Entry Securities Outstanding
as of the related Settlement Date after giving
effect to such transaction and all other offers to
purchase Securities of which the Company has
advised the Issuing Agent but which have not yet
been settled.
L. The Selling Agent or the Purchasing
II-19
<PAGE>
Agent, as the case may be, will confirm the
purchase of such Book-Entry Security to the
purchaser either by transmitting to the
Participants with respect to such Book-Entry
Security a confirmation order through the
Depository's Participant Terminal System or by
mailing a written confirmation to such purchaser.
M. Notwithstanding the foregoing, the Selling Agent
shall in all cases take the actions described
under the caption "Delivery of Confirmation and
Prospectus to Purchaser by Selling Agent" in Part
I of this Administrative Procedure, at the time or
times specified under such caption for such
actions.
Settlement Procedures
Timetable: For orders of Book-Entry Securities accepted by the
Company, Settlement Procedures "A" through "L" set
forth above shall be completed as soon as possible but
not later than the respective times (New York City
time) set forth below:
SETTLEMENT
PROCEDURE TIME
A 11:00 a.m. on the trade date
B 12:00 Noon on the trade date
C 2:00 p.m. on the trade date
D 3:00 p.m. on the Business Day before
Settlement Date
E 9:00 a.m. on Settlement Date
F 10:00 a.m. on Settlement
II-20
<PAGE>
Date
G-H 2:00 p.m. on Settlement Date
I 4:45 p.m. on Settlement Date
J-L 5:00 p.m. on Settlement Date
If a sale is to be settled more than one Business Day
after the trade date, Settlement Procedures A, B, and C
may, if necessary, be completed at any time prior to
the specified times on the first Business Day after the
trade date. In connection with a sale which is to be
settled more than one Business Day after the trade
date, if the initial interest rate for a Floating Rate
Note is not known at the time that Settlement Procedure
A is completed, Settlement Procedures B and C shall be
completed as soon as such rates have been determined,
but no later than 11:00 a.m. and 2:00 p.m., New York
City time, respectively, on the second Business Day
before the Settlement Date. Settlement Procedure I is
subject to extension of Fedwire closing deadlines and
in the other events specified in the SDFS operating
procedures in effect on the settlement date.
If settlement of a Book-Entry Security is rescheduled
or cancelled, the Company will as soon as practicable
give the Trustee notice to such effect. The Trustee
will deliver to the Depository, through the
Depository's Participant Terminal System, a
cancellation message (the form of which has been
previously furnished to the Trustee by the Depository)
to such effect by no later than 2:00 p.m., New York
City time, on the Business Day immediately preceding
the scheduled Settlement Date (provided the Issuing
Agent received such notice from the Company by noon on
the business day immediately preceding the Settlement
II-21
<PAGE>
Date) and in any case as soon as practicable. A copy
of such message will be routed through the facilities
of the Depository to the Selling Agent and Standard &
Poor's Corporation.
Failure to Settle: If the Issuing Agent fails to enter in timely fashion
an SDFS deliver order with respect to any Book-Entry
Security or any portion of a Global Certificate
representing a Book-Entry Security pursuant to
Settlement Procedure G, or if the Selling Agent or the
Purchasing Agent, as the case may be, fails to enter in
timely fashion an SDFS deliver order with respect to
such Book-Entry Security pursuant to Settlement
Procedure H, the Issuing Agent may deliver to the
Depository, through the Depository's Participant
Terminal System, as soon as practicable, a withdrawal
message (the form of which has been previously
furnished to the Issuing Agent by the Depository)
instructing the Depository to debit such Book-Entry
Security to the participant account of the Issuing
Agent maintained at the Depository. A copy of such
message will be routed through the facilities of the
Depository to such Agent. The Depository will process
the withdrawal message, provided that such participant
account contains Book-Entry Securities having the same
Fixed Rate Terms, Floating Rate Terms or Zero Coupon
Terms, as the case may be, having an aggregate
principal amount that is at least equal to the
principal amount to be debited. If withdrawal messages
are processed with respect to all the Book-Entry
Securities represented by a particular Global
Certificate, the Issuing Agent will cancel immediately
such Global Certificate, make appropriate entries in
its records and, unless otherwise instructed by the
Company, destroy the Global Certificate. The CUSIP
number assigned to such Global Certificate shall, in
accordance with CUSIP Service Bureau procedures, be
retired and not reassigned. If withdrawal messages
are processed with
II-22
<PAGE>
respect to only a portion of the Book-Entry
Securities represented by a particular Global
Certificate, the Issuing Agent will exchange such
Global Certificate for two Global Certificates
authenticated by the Trustee, one of which
shall represent the Book-Entry Securities for which
withdrawal messages are processed and shall be
cancelled by the Trustee and destroyed immediately
after issuance, and the other of which shall represent
the other Book-Entry Securities previously represented
by the surrendered Global Certificate and shall bear
the CUSIP number of the surrendered Global Certificate.
The Company will reimburse such Agent on an equitable
basis for its loss of the use of funds during any
period when the funds were credited to the account of
the Company in connection with such attempted
settlement.
If the purchase price for any Book-Entry Security is
not timely paid to the Participants with respect to
such Security by the beneficial purchaser thereof or by
a person, including an indirect participant in the
Depository, acting on behalf of such purchaser (other
than the Purchasing Agent, if any), such Participants
and, in turn, the Selling Agent or the Purchasing
Agent, as the case may be, may enter SDFS deliver
orders through the Depository's Participant Terminal
System reversing the orders entered pursuant to
Settlement Procedures G and H, respectively.
Immediately thereafter, the Issuing Agent will deliver
the withdrawal message and take the related actions
described in the preceding paragraph. The Company will
reimburse such Agent on an equitable basis for its loss
of the use of funds during any period when the funds
were credited to the account of the Company in
connection with such attempted settlement.
Notwithstanding the foregoing, upon any failure to
settle with respect to any
II-23
<PAGE>
Book-Entry Security or any portion of a Global
Certificate representing a Book-Entry Security, the
Depository may take any actions in accordance with its
SDFS operating procedures then in effect. In the event
of a failure to settle with respect to any Book-Entry
Security that was to have been represented by a Global
Certificate also representing other Book-Entry
Securities, the Issuing Agent will provide, in
accordance with Settlement Procedures D and E, for the
authentication and issuance of a Global Certificate
representing the remaining principal amount to have
been represented by such Global Certificate and will
make appropriate entries in its records.
Issuing and Paying
Agents Not to Risk
Funds: Nothing herein will be deemed to require the Issuing
Agent or the Paying Agent to risk or expend its own
funds in connection with any payment to the Company,
the Agents, the Depository or any Securityholder, it
being understood by all parties that payments made by
the Issuing Agent or the Paying Agent to any party will
be made only to the extent that funds are provided to
the Issuing Agent or the Paying Agent, as the case may
be, for such purpose.
II-24
<PAGE>
ANNEX III
ACCOUNTANT'S LETTER
Pursuant to Section 4(k) and Section 6(e), as the case
may be, of the Distribution Agreement, the accountants shall
furnish letters to the effect that:
(i) They are independent certified public accountants
with respect to the Company and its subsidiaries within the
meaning of the Act and the applicable published rules and
regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited
(and, if applicable, prospective financial statements and/or
pro forma financial information examined) by them and
included or incorporated by reference in the Registration
Statement or the Prospectus comply as to form in all
material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable,
and the related published rules and regulations thereunder;
and, if applicable, they have made a review in accordance
with standards established by the American Institute of
Certified Public Accountants of the consolidated interim
financial statements, selected financial data, pro forma
financial information, prospective financial statements
and/or condensed financial statements derived from audited
financial statements of the Company for the periods
specified in such letter, as indicated in their reports
thereon, copies of which have been furnished to the Agents;
(iii) The unaudited selected financial information with
respect to the consolidated results of operations and
financial position of the Company for the five most recent
fiscal years included in the Prospectus and included or
incorporated by reference in Item 6 of the Company's Annual
Report on Form 10-K for the most recent fiscal year agrees
with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements
for five such fiscal years which were included or
incorporated by reference in the Company's Annual Reports on
Form 10-K for such fiscal years;
(iv) On the basis of limited procedures, not
constituting an audit in accordance with generally accepted
auditing standards, consisting of a reading of the unaudited
financial statements and other information referred to
below, a reading of the latest available interim financial
<PAGE>
statements of the Company and its subsidiaries, inspection
of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus,
inquiries of officials of the Company and its subsidiaries
responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such
letter, nothing came to their attention that caused them to
believe that:
(A) the unaudited condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included or
incorporated by reference in the Company's Quarterly
Reports on Form 10-Q incorporated by reference in the
Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of
the Exchange Act as it applies to Form 10-Q and the
related published rules and regulations thereunder or
are not in conformity with generally accepted
accounting principles applied on a basis substantially
consistent with the basis for the audited consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included or
incorporated by reference in the Company's Annual
Report on Form 10-K for the most recent fiscal year;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not
agree with the corresponding items in the unaudited
consolidated financial statements from which such data
and items were derived, and any such unaudited data and
items were not determined on a basis substantially
consistent with the basis for the corresponding amounts
in the audited consolidated financial statements
included or incorporated by reference in the Company's
Annual Report on Form 10-K for the most recent fiscal
year;
(C) the unaudited financial statements which were
not included in the Prospectus but from which were
derived the unaudited condensed financial statements
referred to in clause (A) above and any unaudited
income statement data and balance sheet items included
in the Prospectus and referred to in Clause (B) above
were not determined on a basis substantially consistent
with the basis for the audited financial statements
included or incorporated by reference in the Company's
Annual Report on Form 10-K for the most recent fiscal
year.
-2-
<PAGE>
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by
reference in the Prospectus do not comply as to form in
all material respects with the applicable accounting
requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments
have not been properly applied to the historical
amounts in the compilation of those statements;
(E) as of the specified date not more than five
business days prior to the date of such letter, there
have been any changes in the consolidated capital stock
(other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs
of performance shares and upon conversions of
convertible securities, in each case which were
outstanding on the date of the latest balance sheet
included or incorporated by reference in the
Prospectus) or any increase in the consolidated
long-term debt of the Company and its subsidiaries, or
any decreases in consolidated net assets or other items
specified by the Agents, or any increases in any items
specified by the Agents, in each case as compared with
amounts shown in the latest balance sheet included or
incorporated by reference in the Prospectus, except in
each case for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or
which are described in such letter; and
(F) for the period from the date of the latest
financial statements included or incorporated by
reference in the Prospectus to the specified date
referred to in Clause (E) above there were any
decreases in consolidated revenues or any material
decreases in the total or per share amounts or
consolidated net income or other items specified by the
Agents, or any increases in any items specified by the
Agents, in each case as compared with the comparable
period of the preceding year and with any other period
of corresponding length specified by the Agents, except
in each case for increases or decreases which the
Prospectus discloses have occurred or may occur or
which are described in such letter; and
(v) In addition to the audit referred to in their
report(s) included or incorporated by reference in the
Prospectus and the limited procedures, inspection of minute
books, inquiries and other procedures referred to in
paragraphs (iii) and (iv) above, they have carried out
certain specified procedures, not constituting an audit in
accordance with generally accepted auditing standards, with
-3-
<PAGE>
respect to certain amounts, percentages and financial
information specified by the Agents, which are derived from
the general accounting records of the Company and its
subsidiaries, which appear in the Prospectus (excluding
documents incorporated by reference), or in Part II of, or
in exhibits and schedules to, the Registration Statement
specified by the Agents or in documents incorporated by
reference in the Prospectus specified by the Agents, and
have compared certain of such amounts, percentages and
financial information with the accounting records of the
Company and its subsidiaries and have found them to be in
agreement.
All references in this Annex III to the Prospectus
shall be deemed to refer to the Prospectus (including the
documents incorporated by reference therein) as defined in the
Distribution Agreement as of the Commencement Date referred to in
Section 6(e) thereof and to the Prospectus as amended or
supplemented (including the documents incorporated by reference
therein) as of the date of the amendment, supplement,
incorporation or the Time of Delivery relating to the Terms
Agreement requiring the delivery of such letter under Section
4(k) thereof.
-4-
<PAGE>
SKADDEN, ARPS, SLATE, MEAGHER & FLOM
919 Third Avenue
New York 10022-3897
July 16, 1996
UNUM Corporation
2211 Congress Street
Portland, Maine 04122
Re: UNUM Corporation
Registration Statement on Form S-3
----------------------------------
Dear Sirs and Madams:
We have acted as special counsel to UNUM Corporation, a Delaware
corporation (the "Company"), in connection with the preparation of the
Registration Statement on Form S-3 (the "Registration Statement") to be filed by
the Company with the Securities and Exchange Commission (the "Commission"). The
Registration Statement relates to the issuance and sale from time to time,
pursuant to Rule 415 of the General Rules and Regulations promulgated under the
Securities Act of 1933, as amended (the "Securities Act"), of the following
securities of the Company with an aggregate initial public offering price of up
to $404,500,000 or the equivalent thereof, based on the applicable exchange rate
at the time of sale, in one or more foreign currencies, currency units or
composite currencies as shall be designated by the Company: (i) debt securities
(the "Debt Securities") which may be either senior debt securities (the "Senior
Debt Securities") or subordinated debt securities (the "Subordinated Debt
Securities"); (ii) shares of its preferred stock, $.10 par value (the "Preferred
Stock"); (iii) shares of its common stock, $.10 par value (the "Common Stock");
(iv) warrants to purchase Debt Securities, Preferred Stock, Common Stock or
other securities of the Company as shall be designated by the Company at the
time of offering (the "Warrants"); and (v) such indeterminate amount of Debt
Securities and number of shares of Common Stock and Preferred Stock as may be
issued upon conversion or exchange of any Debt Securities or Pre-
<PAGE>
UNUM Corporation
July 16, 1996
Page 2
ferred Stock or upon exercise of Warrants for such securities, including such
shares of Common Stock and Preferred Stock as may be issued pursuant to
anti-dilution adjustments, in amounts, at prices and on terms to be
determined at the time of offering (the "Indeterminate Securities").
Pursuant to Rule 429 under the Securities Act, the prospectus included in the
Registration Statement also relates to $95,500,000 of securities (the
"Registered Securities") registered as Debt Securities, Preferred Stock,
Common Stock, Warrants and Indeterminate Securities under Registration
Statement No. 33-69132 (the "Prior Registration Statement"). The Debt
Securities, Preferred Stock, Common Stock, Warrants, Indeterminate
Securities, Registered Securities and any additional securities of the
Company which are registered in a registration statement filed pursuant to
Rule 462(b) under the Securities Act (a "Rule 462(b) Registration Statement")
are collectively referred to herein as the "Securities." The Senior Debt
Securities may be issued under an Indenture, dated as of September 15, 1990
(the "Senior Indenture"), between the Company and The Chase Manhattan Bank,
N.A., as trustee (the "Senior Indenture Trustee"). The Subordinated Debt
Securities may be issued under an Indenture, dated as of May 1, 1995 (the
"Subordinated Indenture" and, together with the Senior Indenture, the
"Indentures"), between the Company and Mellon Bank, N.A., as trustee (the
"Subordinated Indenture Trustee" and, together with the Senior Indenture
Trustee, the "Trustees").
This opinion is delivered in accordance with the requirements of Item
601(b)(5) of Regulation S-K under the Securities Act.
We have examined (i) the form of Registration Statement; (ii) the
Prior Registration Statement; (iii) the Senior Indenture; (iv) the
Subordinated Indenture; (v) the form of underwriting agreement that may be
entered into between the Company and Goldman, Sachs & Co. or another
underwriter or underwriters in connection with
<PAGE>
UNUM Corporation
July 16, 1996
Page 3
any offering of the Securities (the "Underwriting Agreement"); (vi) the
Certificate of Incorporation of the Company, as amended to the date hereof;
(vii) the By-laws of the Company as currently in effect; (viii) a specimen of
the share certificate used to represent shares of the Common Stock; (ix) certain
resolutions adopted by the Board of Directors of the Company (the "Board")
relating to the issuance of the Securities (the "Board Resolutions"); and
(x) the order of the Commission dated October 9, 1990 declaring the Senior
Indenture qualified under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the order of the Commission dated October 8, 1993
declaring the Prior Registration Statement effective under the Securities Act
and the Subordinated Indenture qualified under the Trust Indenture Act. We have
also examined originals or copies, certified or otherwise identified to our
satisfaction, of such records of the Company and such agreements, certificates
of public officials, certificates of officers or other representatives of the
Company and others, and such other documents, certificates and records as we
have deemed necessary or appropriate as a basis for the opinions set forth
herein.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified, conformed or photostatic copies and the
authenticity of the originals of such latter documents. In making our
examination of documents executed or to be executed by parties other than the
Company, we have assumed that such parties had the power, corporate or other, to
enter into and perform all obligations thereunder and have also assumed the due
authorization by all requisite action, corporate or other, and execution and
delivery by such parties of such documents and the validity and binding effect
thereof. We have also assumed that the stock certificates evidencing the shares
of Common Stock to be issued will conform
<PAGE>
UNUM Corporation
July 16, 1996
Page 4
to the specimen thereof examined by us. As to any facts material to the
opinions expressed herein which were not independently established or verified,
we have relied upon oral or written statements and representations of officers
and other representatives of the Company and others.
Members of our firm are admitted to the Bar in the States of New York
and Delaware, and we do not express any opinion as to the laws of any other
jurisdiction other than the laws of the United States of America to the extent
referred to specifically herein. The Securities may be issued from time to time
on a delayed or continuous basis, and this opinion is limited to the laws,
including the rules and regulations, as in effect on the date hereof.
Based upon and subject to the foregoing, we are of the opinion that:
1. With respect to any series of Debt Securities (the "Offered
Debt Securities"), when (i) the Registration Statement, as finally amended
(including all necessary post-effective amendments and any Rule 462(b)
Registration Statement), has become effective; (ii) an appropriate Prospectus
Supplement with respect to the Offered Debt Securities has been prepared,
delivered and filed in compliance with the Securities Act and the applicable
rules and regulations thereunder; (iii) if the Offered Debt Securities are to
be sold pursuant to a firm commitment underwritten offering, the Underwriting
Agreement with respect to the Offered Debt Securities has been duly
authorized, executed and delivered by the Company and the other parties
thereto; (iv) the Board, including any appropriate committee appointed
thereby, and appropriate officers of the Company have taken all necessary
corporate action to approve the issuance and terms of the Offered Debt
Securities and related matters; (v) the terms of the Offered Debt Securities
and of their issuance and sale have been duly established in conformity
<PAGE>
UNUM Corporation
July 16, 1996
Page 5
with the applicable Indenture so as not to violate any applicable law, the
Certificate of Incorporation or By-laws of the Company or result in a default
under or breach of any agreement or instrument binding upon the Company and so
as to comply with any requirement or restriction imposed by any court or
governmental body having jurisdiction over the Company; (vi) the Offered Debt
Securities have been duly executed and authenticated in accordance with the
provisions of the applicable Indenture and duly delivered to the purchasers
thereof upon payment of the agreed-upon consideration therefor, (1) the Offered
Debt Securities (including any Debt Securities duly issued upon exercise of any
Warrants in accordance with the terms thereof), when issued and sold in
accordance with the applicable Indenture and the Underwriting Agreement or any
other duly authorized, executed and delivered applicable valid and binding
purchase or distribution agreement (or upon exercise of the Warrants), will be
valid and binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, except to the extent that enforcement
thereof may be limited by (a) bankruptcy, insolvency, reorganization, fraudulent
transfer, moratorium or other similar laws now or hereafter in effect relating
to creditors' rights generally, (b) general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or in equity), (c)
public policy considerations which may limit the rights of parties to obtain
further remedies, (d) requirements that a claim with respect to any Offered Debt
Securities denominated other than in United States dollars (or a judgment
denominated other than in United States dollars in respect of such claim) be
converted into United States dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law, (e) governmental authority to limit,
delay or prohibit the making of payments outside the United States or in foreign
currencies, currency units or composite currencies; and (2) if Common Stock or
Preferred Stock is issuable upon conversion or exchange of any convertible
Offered
<PAGE>
UNUM Corporation
July 16, 1996
Page 6
Debt Securities, the Common Stock or Preferred Stock issuable upon conversion or
exchange of such Offered Debt Securities will be validly issued, fully paid and
nonassessable, assuming the conversion or exchange of the Offered Debt
Securities in accordance with the terms of the applicable Indenture relating
thereto.
We note that, as of the date of this opinion, a judgment for money in
an action based on a Debt Security denominated in a foreign currency, currency
unit or composite currency in a federal or state court in the United States
ordinarily would be enforced in the United States only in United States dollars.
The date used to determine the rate of conversion of the foreign currency,
currency unit or composite currency in which a particular Debt Security is
denominated into United States dollars will depend upon various factors,
including which court renders the judgment.
2. With respect to the shares of any series of Preferred Stock
(the "Offered Preferred Stock"), when (i) the Registration Statement, as
finally amended (including all necessary post-effective amendments and any
Rule 462(b) Registration Statement), has become effective; (ii) an
appropriate Prospectus Supplement with respect to the shares of the Offered
Preferred Stock has been prepared, delivered and filed in compliance with the
Securities Act and the applicable rules and regulations thereunder; (iii) if
the Offered Preferred Stock is to be sold pursuant to a firm commitment
underwritten offering, the Underwriting Agreement with respect to the shares
of the Offered Preferred Stock has been duly authorized, executed and
delivered by the Company and the other parties thereto; (iv) the Board,
including any appropriate committee appointed thereby, and appropriate
officers of the Company have taken all necessary corporate action to approve
the issuance and terms of the shares of the Offered Preferred Stock and
related matters, including the adoption of a Certificate of Designation for
the Offered Preferred Stock in accordance with the applicable
<PAGE>
UNUM Corporation
July 16, 1996
Page 7
provisions of Delaware law (the "Certificate of Designation"); (v) the filing of
the Certificate of Designation with the Secretary of State of the State of
Delaware has duly occurred; (vi) the terms of the Offered Preferred Stock and of
their issuance and sale have been duly established in conformity with the
Company's Certificate of Incorporation including the Certificate of Designation
relating to the Offered Preferred Stock and the By-laws of the Company so as not
to violate any applicable law, the Certificate of Incorporation or By-laws of
the Company or result in a default under or breach of any agreement or
instrument binding upon the Company and so as to comply with any requirement or
restriction imposed by any court or governmental body having jurisdiction over
the Company; and (vii) certificates representing the shares of the Offered
Preferred Stock are duly established in accordance with the applicable
provisions of Delaware law and are duly executed, countersigned,
registered and delivered upon payment of the agreed-upon consideration therefor,
(1) the shares of the Offered Preferred Stock (including any Preferred Stock
duly issued upon exercise of any Warrants in accordance with the terms thereof),
when issued and sold in accordance with the Underwriting Agreement or any other
duly authorized, executed and delivered applicable valid and binding purchase or
distribution agreement (or upon exercise of the Warrants), will be duly
authorized, validly issued, fully paid and nonassessable, provided that the
consideration therefor is not less than the par value thereof; and (2) if the
Offered Preferred Stock is convertible or exchangeable into Common Stock, the
Common Stock issuable upon conversion or exchange of the Offered Preferred Stock
will be duly authorized, validly issued, fully paid and nonassessable, assuming
the conversion or exchange of the Offered Preferred Stock in accordance with the
terms of the Certificate of Designation.
3. With respect to any offering of Common Stock, when (i) the
Registration Statement, as finally amended (including all necessary post-
effective amend-
<PAGE>
UNUM Corporation
July 16, 1996
Page 8
ments and any Rule 462(b) Registration Statement) has become effective; (ii)
an appropriate Prospectus Supplement with respect to the Common Stock has
been prepared, delivered and filed in compliance with the Securities Act and
the applicable rules and regulations thereunder; (iii) if the Common Stock is
to be sold pursuant to a firm commitment underwritten offering, the
Underwriting Agreement with respect to the Common Stock has been duly
authorized, executed and delivered by the Company and the other parties
thereto; (iv) the Board, including any appropriate committee appointed
thereby, and appropriate officers of the Company have taken all necessary
corporate action to approve the issuance of the Common Stock and related
matters; (v) the terms of the issuance and sale of the Common Stock have been
duly established in conformity with the Certificate of Incorporation and
By-laws so as not to violate any applicable law, the Certificate of
Incorporation or By-laws of the Company or result in a default under or
breach of any agreement or instrument binding upon the Company and so as to
comply with any restriction imposed by any court or governmental body having
jurisdiction over the Company; and (vi) certificates representing the shares
of Common Stock are duly executed, countersigned, registered and delivered
upon payment of the agreed-upon consideration therefor, the shares of Common
Stock (including any duly issued upon exercise of any Warrants), when issued
and sold in accordance with the Underwriting Agreement with respect to the
Common Stock or any other duly authorized, executed and delivered applicable
valid and binding purchase or distribution agreement, will be duly
authorized, validly issued, fully paid and nonassessable, provided that the
consideration therefor is not less than the par value thereof.
4. With respect to the issuance of any series of Warrants (the
"Offered Warrants"), when (i) the Registration Statement, as finally amended
(including all necessary post-effective amendments and any Rule 462(b)
Registration Statement), has become effective; (ii) an
<PAGE>
UNUM Corporation
July 16, 1996
Page 9
appropriate Prospectus Supplement with respect to the Offered Warrants has been
prepared, delivered and filed in compliance with the Securities Act and the
applicable rules and regulations thereunder; (iii) the warrant agreement
relating to the Offered Warrants (the "Warrant Agreement") in the form to be
filed as an exhibit to the Registration Statement, any amendment thereto or any
document incorporated by reference therein has been duly executed and delivered
as contemplated by the Board Resolutions; (iv) the terms of the Offered Warrants
and of their issuance and sale have been duly established in conformity with the
Warrant Agreement relating to such Offered Warrants so as not to violate any
applicable law, the Certificate of Incorporation or By-laws of the Company or
result in a default under or breach of any agreement or instrument binding upon
the Company and so as to comply with any requirement or restriction imposed by
any court or governmental body having jurisdiction over the Company; (v) the
Offered Warrants have been duly executed, delivered and countersigned, in
accordance with the Warrant Agreement relating to such Offered Warrants, and
duly issued and sold in the applicable form to be filed as an exhibit to the
Registration Statement or any amendment thereto and in the manner contemplated
in the Registration Statement and any Prospectus Supplement relating thereto;
(vi) if the Offered Warrants are to be sold pursuant to a firm commitment
underwritten offering, the Underwriting Agreement with respect to the Offered
Warrants has been duly authorized, executed and delivered by the Company and the
other parties thereto; and (vii) the Board, including any appropriate committee
appointed thereby, and appropriate officers of the Company have taken all
necessary corporate action to approve the issuance and terms of the Offered
Warrants and related matters, such Offered Warrants will be valid and binding
obligations of the Company, enforceable against the Company in accordance with
their respective terms, except to the extent that enforcement thereof may be
limited by (a) bankruptcy, insolvency, reorganization, fraudulent transfer,
moratorium or other similar laws now or hereaf-
<PAGE>
UNUM Corporation
July 16, 1996
Page 10
ter in effect relating to creditors' rights generally, (b) general principles of
equity (regardless of whether enforceability is considered in a proceeding at
law or in equity), and (c) public policy considerations which may limit the
rights of parties to obtain further remedies.
We hereby consent to the filing of this opinion with the Commission
as Exhibit 5 to the Registration Statement. We also consent to the reference
to our firm under the heading "Validity of the Securities" in the
Registration Statement. We further consent to the incorporation of this
opinion by reference as an exhibit to any Rule 462(b) Registration Statement
and to the reference to our firm under the caption "Validity of the
Securities" in the prospectus included or incorporated by reference in any
such Rule 462(b) Registration Statement. In giving these consents, we do not
thereby admit that we are in the category of persons whose consent is
required under Section 7 of the Securities Act or the rules and regulations
of the Commission promulgated thereunder.
Very truly yours,
/s/ SKADDEN, ARPS, SLATE, MEAGHER & FLOM
<PAGE>
EXHIBIT 12
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
--------------------
(UNAUDITED--DOLLARS IN MILLIONS) 1996 1995
--------- ---------
<S> <C> <C>
Earnings:
Income from continuing operations before income taxes................... $ 102.7 $ 85.4
Add: Fixed charges...................................................... 13.3 10.0
--------- ---------
Earnings as adjusted...................................................... $ 116.0 $ 95.4
--------- ---------
--------- ---------
Fixed charges:
Interest expense........................................................ $ 10.3 $ 7.3
Interest portion of rent expense........................................ 3.0 2.7
--------- ---------
Total fixed charges....................................................... $ 13.3 $ 10.0
--------- ---------
--------- ---------
Ratio of earnings to fixed charges........................................ 8.7 9.5
--------- ---------
--------- ---------
</TABLE>
For purposes of computing the ratio of earnings to fixed charges, earnings as
adjusted consist of income from continuing operations before income taxes and
fixed charges. Fixed charges consist of interest expense and the estimated
interest portion of rent expense.
<PAGE>
EXHIBIT 15
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
We are aware that our report dated April 24, 1996, on our review of interim
financial information of UNUM Corporation for the three-month period ended March
31, 1996, and included in the Company's quarterly report on Form 10-Q for the
quarter then ended is incorporated by reference in this registration statement.
Pursuant to Rule 436(c) under the Securities Act of 1933, this report should not
be considered a part of the registration statement prepared or certified by us
within the meaning of Sections 7 and 11 of that Act.
/s/ COOPERS & LYBRAND L.L.P.
- -----------------------------
Portland, Maine
July 12, 1996
<PAGE>
EXHIBIT 23.2
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
We consent to the inclusion in this registration statement on Form S-3 of
our report dated February 6, 1996, on our audits of the financial statements and
financial statement schedules of UNUM Corporation. We also consent to the
reference to our firm under the caption "Experts."
/s/ COOPERS & LYBRAND L.L.P.
- -----------------------------
Portland, Maine
July 12, 1996
<PAGE>
Securities Act of 1933 File No: ________
(If application to determine eligibility of trustee
for delayed offering pursuant to Section 305(b)(2))
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
__________________
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
(Exact name of trustee as specified in its charter)
13-2633612
(I.R.S. Employer Identification Number)
1 CHASE MANHATTAN PLAZA, NEW YORK, NEW YORK
(Address of principal executive offices)
10081
(Zip Code)
__________________
UNUM CORPORATION
(Exact name of obligor as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation or organization)
01-0405657
(I.R.S. Employer Identification No.)
2211 CONGRESS STREET
PORTLAND, MAINE
(Address of principal executive offices)
04122
(Zip Code)
_______________________
DEBT SECURITIES IN SERIES FROM TIME TO TIME
(Title of the indenture securities)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of The Federal Reserve System,
Washington, D. C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
The Trustee is not the obligor, nor is the Trustee directly or
indirectly controlling, controlled by, or under common control
with the obligor.
(See Note on Page 2.)
ITEM 16. LIST OF EXHIBITS.
List below all exhibits filed as a part of this statement of
eligibility.
*1. -- A copy of the articles of association of the trustee as now in
effect . (See Exhibit T-1 (Item 12) , Registration No. 33-
55626.)
*2. -- Copies of the respective authorizations of The Chase Manhattan
Bank (National Association) and The Chase Bank of New York
(National Association) to commence business and a copy of
approval of merger of said corporations, all of which
documents are still in effect. (See Exhibit T-1 (Item 12),
Registration No. 2-67437.)
*3. -- Copies of authorizations of The Chase Manhattan Bank
(National Association) to exercise corporate trust powers,
both of which documents are still in effect. (See Exhibit
T-1 (Item 12), Registration No. 2-67437.)
*4. -- A copy of the existing by-laws of the trustee.
*5. -- A copy of each indenture referred to in Item 4, if the obligor
is in default. (Not applicable.)
*6. -- The consents of United States institutional trustees required
by Section 321(b) of the Act. (See Exhibit T-1 (Item 12),
Registration No. 22-19019.)
7. -- A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
___________________
*The Exhibits thus designated are incorporated herein by reference.
Following the description of such Exhibits is a reference to the copy of the
Exhibit heretofore filed with the Securities and Exchange Commission, to which
there have been no amendments or changes.
___________________
1.
<PAGE>
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
trustee of all facts on which to base a responsive answer to Item 2 the answer
to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, The Chase Manhattan Bank (National Association), a corporation
organized and existing under the laws of the United States of America, has duly
caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized , all in the City of New York, and the
State of New York, on the 9th day of July 1996.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By Andrea Koster-Crain
-------------------------------
Andrea Koster, Vice President
_________________
2.
<PAGE>
EXHIBIT 4
- --------------------------------------------------------------------------------
[LOGO]
BY-LAWS
OF
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
-----------------------------
AS AMENDED 3/19/96
-----------------------------
- --------------------------------------------------------------------------------
<PAGE>
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
BY-LAWS
ARTICLE I
SHAREHOLDERS
Section 1.1. ANNUAL MEETING. The annual meeting of the shareholders of the Bank
for the election of Directors and the transaction of such other business as may
be brought before said meeting shall be held at the main office of the Bank or
such other place as the Board may designate, on the third Tuesday in April in
each year, at 2 P.M. If the third Tuesday in April falls on a legal holiday in
the State of New York such meeting shall be held, and the Directors elected, on
the next following banking day. If, from any cause, an election of Directors is
not made on the day fixed for the annual meeting of shareholders, or in the
event of a legal holiday, on the next following banking day, an election may be
held at any adjournment of the annual meeting of shareholders or any special
meeting of the shareholders or adjournment thereof, as designated by the Board,
but within 60 days of the day fixed for the annual meeting of shareholders.
Notice of such adjournment of special meeting shall be given in the manner
provided in Section 1.3 .
Section 1.2. SPECIAL MEETINGS. Special meetings of the shareholders shall be
held whenever called by the Chairman of the Board, the President, the Board or
any one or more shareholders holding in the aggregate not less than 25% of the
outstanding shares of capital stock of the Bank.
Section 1.3. NOTICE OF MEETINGS AND WAIVERS. Unless otherwise provided by the
laws of the United States, a notice of the time, place and purpose of every
annual and every special meeting of the shareholders shall be given by first-
class mail, postage prepaid, mailed at least 10 days prior to the date of such
meeting to each shareholder of record at his address as shown upon the books of
the Bank. Except as to any notice expressly required by the laws of the United
States, waiver of notice in writing by any shareholder of any meeting of
shareholders. Whether prior or subsequent to such meeting, or attendance at such
meeting by any shareholder, shall be equivalent to notice to such shareholder of
such meeting.
Section 1.4. QUORUM. Except as otherwise provided by the laws of the United
States, the presence in person or by proxy of the holders of one-third of the
outstanding shares of capital stock of the Bank entitled to vote shall be
necessary to constitute a quorum for the transaction of any business at any
meeting of shareholders. In the absence of a quorum the holders of a majority of
the shares of capital stock present in person or by proxy may adjourn any
meeting from time to time until a quorum is present and, except as may be
required by Section 1.1, no notice of any adjourned meeting need be given. At
any such adjourned meeting at which a quorum is present, any business may be
transacted which might have been transacted at the meeting as originally called.
Section 1.5. ORGANIZATION. At every meeting of shareholders the Chairman of the
Board, or in his absence the President, shall preside. In their absence a Vice
Chairman of the Board shall preside. In the absence of all said officers, any
other officer of the Bank present shall call such meeting to order and preside.
In the absence of the Secretary, the presiding officer may appoint a secretary
of the meeting.
<PAGE>
2
Section 1.6. VOTING. In deciding all matters at meetings of shareholders, except
in the election of Directors, each shareholder of record shall be entitled to
one vote on each share of capital stock of the Bank held by him; and, except as
otherwise provided by the laws of the United States, the Articles of Association
or these By-Laws, all such matters shall be decided by a majority of the votes
cast at a meeting at which quorum is present. In all elections of Directors,
each shareholder shall have the right to vote the number of shares of capital
stock held by him for as many persons as there are Director to be elected or to
cumulate such shares and give one candidate as many votes as the number of
Directors multiplied by the number of his shares shall equal, or to distribute
them on the same principle among as many candidates as he shall think fit. Any
shareholder may vote in person or by proxy duly authorized in writing and
delivered to the Secretary of the meeting. No officer or employee of the Bank
shall act as proxy. Voting for the election of Directors shall be by ballot and
all other voting shall be by ballot or VIVA VOCE as may be determined by the
presiding officer.
ARTICLE II
BOARD OF DIRECTORS
Section 2.1. NUMBER. The affairs of the Bank shall be managed by the Board of
Directors (herein referred to as the "Board"), which shall consist of not less
than five nor more than 25 shareholders, the exact number of Directors within
such minimum and maximum limits to be fixed and determined from time to time by
resolution of a majority of the full Board or by resolution of the shareholders
at any annual or special meeting thereof; provided, however, that a majority of
the full Board may not increase the number of Directors to a number which
exceeds the number of Directors last elected by shareholders by more than (a)
four, if the number of Directors so elected was 16 or more, or (b) two, if the
number of Directors so elected was 15 or less. To qualify as a shareholder, a
Director shall own stock of the Bank or of the bank holding company controlling
this Bank meeting the requirements of the Articles of Association of this Bank.
Section 2.2. ANNUAL ORGANIZATION MEETING. An annual organization meeting of the
Board shall be held at the main office of the Bank immediately following the
annual meeting of shareholders, unless another place or time be fixed by
resolution of the Board. Notice of such meeting need not be give. Any business
may be transacted at such meeting.
Section 2.3. REGULAR MEETINGS. The Board may fix times for regular meetings of
the Board and no notice of such meetings need be given. Any business may be
transacted at any regular meeting.
Section 2.4. SPECIAL MEETINGS. Special meetings of the Board shall be held
whenever called by the Chairman of the Board or the President or a Vice Chairman
of the Board or a Vice Chairman or any three Directors, provided, however, that
a Vice Chairman shall not call a special meeting unless one of the purposes of
the meeting is to appoint one or more officers or Directors to fill vacancies
resulting from disability, death or other cause. Notice of each such special
meeting shall be mailed postage prepaid to each Director, addressed to him at
his residence or usual place of business or other address filed by him with the
Secretary for such purpose, or shall be sent to him by telegraph, cable or
wireless, or shall be delivered or given to him personally or by telephone, not
later than the second day preceding the day on which the meeting is to be held.
Every such notice shall state the time and place but need not state the purposes
of the meeting.
<PAGE>
3
Any business may be transacted at any special meeting. Members of the Board of
Directors may participate in such special meetings through use of conference
telephone or similar communications equipment, so long as all members
participating in such meetings can hear one another.
Section 2.5. WAIVER OF NOTICE OF SPECIAL MEETINGS. Waiver of notice in writing
by any Director of any special meeting of the Board, whether prior or
subsequent to such meeting, or attendance at such meeting by any Director, shall
be equivalent to notice to such Director of such meeting.
Section 2.6. QUORUM AND MANNER OF ACTING. Except as otherwise required by the
laws of the Untied States, the Articles of Association or these By-Laws, one-
third of the Directors then in office shall be necessary to constitute a quorum
for the transaction of any business at any meeting of the Board and the act of a
majority of the Directors present and voting at a meeting at which a quorum is
present shall be the act of the Board. In the absence of a quorum a majority of
the Directors present may adjourn any meeting from time to time until a quorum
is present and no notice of any adjourned meeting need be give. At any such
adjourned meeting at which a quorum is present, any business may be transacted
which might have been transacted at the meeting as originally called.
Section 2.7. COMPENSATION OF DIRECTORS. Directors who are not officers of the
Bank shall receive such compensation as may be fixed by the Board for service on
the Board or any Committee of the Board.
Section 2.8. VACANCIES. In the event a majority of the full Board increases the
number of Directors to a number which exceeds the number of Directors last
elected by shareholders, as permitted by Section 2.1, Directors may be appointed
to fill the resulting vacancies by vote of such majority of the full Board. In
the event of a vacancy in the Board for any other cause a Director may be
appointed to fill such vacancy by vote of a majority of the remaining Directors
then in office.
ARTICLE III
COMMITTEES
Section 3.1. EXECUTIVE COMMITTEE. There shall be an Executive Committee,
consisting of the Chairman of the Board, the President and each Vice Chairman of
the Board, who shall be ex-officio members, and such number of additional
Directors as may from time to time be appointed by the Board. The Chairman of
the Board shall preside at the meetings of the Executive Committee. The Chairman
of the Board shall have the power to make temporary appointments to the
Executive Committee of members of the Board to act in place of members of the
Executive Committee who temporarily cannot attend a meeting or meetings. The
Board may designate one or more other Directors as alternate members of the
Executive Committee, who may replace any absent or disqualified member, other
than an ex-officio member, at any meeting of the Executive Committee.
The Executive Committee shall exercise such powers as may be assigned to it by
the Board and may consider and make recommendations to the Board in respect of
any matters relating to the affairs of the Bank
<PAGE>
4
Meeting of the Executive Committee shall be held at such times and places
as the Executive Committee shall determine or upon call of the Chairman of the
Board or the President. One-third of the members of the Executive Committee,
including at least one ex-officio member and three members who are not officers
of the Bank, shall constitute a quorum.
Section 3.2. TRUST COMMITTEE. There shall be a Trust Committee consisting
of such Directors as shall be appointed from time to time by the Board who shall
serve at the pleasure of the Board. The Board may designate one or more other
Directors as alternate members of the Trust Committee, who may replace any
absent or disqualified member at any meeting of the Trust Committee.
The Trust Committee shall have power to review the general conduct of the
trust, other fiduciary and investment advisory activities of the Bank and its
subsidiaries and to pass upon all such matters relating to the conduct of those
activities as may be submitted to the Trust Committee by the chief executive
officer of the Bank and shall from time to time exercise such other powers as
may be assigned to it by the Board.
Meetings of the Trust Committee shall be held at such time and places as
the Committee shall determine or upon call of any member authorized by the
Committee to call such meetings. A majority of the members of the Committee
shall constitute a quorum.
Section 3.3. OTHER COMMITTEES. The Board may also appoint or provide for
the appointment of other Committees from its members and, to the extent
permitted by law, may assign to any such Committee the exercise of such powers
as the Board may see fit. The Board may designate one or more Directors as
alternate members of any such Committee, who may replace any absent or
disqualified member at any meeting of such Committee.
Section 3.4. COMMITTEE RULES; QUORUM; MANNER OF ACTING. Each Committee may
adopt rules consistent with these by-laws governing the method of calling and
time and place of holding its meetings. One-half of any Committee for which a
quorum is not otherwise set forth in these By-Laws shall constitute a quorum for
the transaction of business, unless the Board shall otherwise provide, and the
act of a majority of the members of such Committee present at a meeting at
which a quorum is present shall be the act of such Committee. Members of all
committees of this Board, other than the Examining Committee, may participate in
meetings of such Committees through use of conference telephone or similar
communications equipment so long as all members participating in such meetings
can hear one another.
ARTICLE IV
OFFICERS
Section 4.1. TITLES. The officers of the Bank shall be a Chairman of the
Board, a President, one or more Vice Chairmen of the Board, one or more Vice
Chairmen, one or more Vice Presidents,
<PAGE>
5
a Secretary and such other officers may be appointed at any time or from time
to time by the Board. The Board may by resolution delegate to such officers as
the Board may designate authority to appoint officers below the Vice Chairman of
the Board, or equivalent, level, assign powers and duties to any officer below
the Vice Chairman of the Board or equivalent, level, rescind or terminate the
appointment of any officer below the Vice Chairman of the Board, or equivalent
level, and accept the resignation of any officer. Any one or more Vice
Presidents may be designated Senior Executive Vice President, Executive Vice
President or Senior Vice President. One person may hold any two or more offices,
and perform the duties thereof, except that no person shall hold the offices of
both Chairman or the Board and Vice Chairman of the Board, both Chairman of the
Board and President or both President and Vice President.
Section 4.2. QUALIFICATION, ELECTION AND TERM OF OFFICE OF OFFICERS. The
Chairman of the Board, the President and each Vice Chairman of the Board shall
be Directors of the Bank. The other officers need not be Directors. The Chairman
of the Board, the President, each Vice Chairman of the Board, and Each Vice
Chairman shall be appointed by the Board to hold office until the next annual
organization meeting of the Board and until their successors are appointed and
qualified. The term of office of all other officers shall be at the pleasure of
the Board. The compensation of all officers of the Bank shall be fixed by
resolution of the Board, except that the Board may authorize the Chairman of
the Board, the President and each Vice Chairman of the Board each to fix and to
delegate to such other officers as the Board may designate authority to fix any
compensation of any person in any official position level not above a level
specified by the Board. Any officer of the Bank may be dismissed at the pleasure
of the Board.
Section 4.3. CHAIRMAN OF THE BOARD AND PRESIDENT. The Chairman of the
Board shall be the chief executive officer of the Bank and shall have the
responsibility for carrying out the policies of the Board and, subject to the
direction of the Board, shall have general supervision over the business and
affairs of the Bank. The President shall be the chief operating officer of the
Bank and shall perform all duties incident to the office of President. The
President shall have general supervision over the operations of the Bank,
subject to the direction of the Board and of the Chairman of the Board. The
Chairman of the Board shall preside at all meetings of the Board and of the
Executive Committee and of the shareholders. In the absence of the Chairman of
the Board, the President shall preside at meetings of the Board and of the
Executive Committee and of the shareholders. The Chairman of the Board and the
President shall have such other powers and perform such other duties as are
prescribed by these By-Laws and as usually pertain to their respective offices
and as may be assigned to them at any time or from time to time by the Board.
Section 4.4. VICE CHAIRMEN OF THE BOARD AND VICE CHAIRMEN. Each Vice
Chairman of the Board and each Vice Chairman shall have such powers and perform
such duties as are prescribed by these By-Laws and as usually pertain to his
office and as may be assigned to him at any time or from time to time by the
Board. In the event of the absence or disability of the Chairman of the Board
and the President, the Vice Chairman of the Board designated by the Chairman of
the Board or the President shall act in their place and assume their duties,
including duties assigned to them in these By-Laws.
Section 4.5. SENIOR EXECUTIVE VICE PRESIDENTS AND EXECUTIVE VICE
PRESIDENTS. Each Senior Executive Vice President and each Executive Vice
President shall , upon request, advise and assist the Chairman of the Board and
the President in managing the Bank and shall have such other powers and perform
such other duties as usually pertain to his office and as may be assigned to him
at any time or from time to time by the board or the Chairman of the board or
the President.
<PAGE>
6.
Section 4.6. SECRETARY. The Secretary shall act as Secretary of the Board
and as Secretary at meetings. of the shareholders and, in general, shall have
charge of all records of the bank relating to its organization and corporate
action and shall have power to certify the contents thereof, and shall have such
other powers and perform such duties as usually pertain to his office and as may
be assigned to him at any time or from time to time by the Board or the Chairman
of the Board or the President.
Section 4.7. OTHER OFFICERS. Other officers appointed by the Board shall
have such powers and perform such duties as usually pertain to their respective
offices and as may be assigned to them at any time or from time to time by the
Board or the Chairman of the Board or the President.
ARTICLE V
SHARES OF CAPITAL STOCK
Section 5.1. CERTIFICATES FOR SHARES OF CAPITAL STOCK. Certificates for
shares of capital stock of the Bank shall be in such form permitted by the laws
of the United States as shall be approved by the Board. Said certificates shall
be signed by the Chairman of the Board, the President and the Secretary, and
sealed with the corporate seal of the Bank. The signatures of the Chairman of
the Board, the President and the Secretary thereon may be facsimiles, engraved
or printed. In case any such officer who has signed or whose facsimile
signature has been placed upon such certificate shall have ceased to be such
before such certificate is issued, it may be issued by the Bank with the same
effect as if such officer had not ceased to be such at the time of its issue.
The corporate seal may be a facsimile, engraved or printed.
Section 5.2. TRANSFERS OF SHARES OF CAPITAL STOCK. Transfers of shares
of capital stock of the Bank shall be made only on the books of the Bank by the
registered holder thereof or by his attorney thereunto authorized by power of
attorney duly executed, and on surrender of the certificate or certificates for
such shares properly endorsed or accompanied by a proper instrument of transfer.
The Board may make such additional rules and regulations as it may deem
expedient concerning the issue, registration and transfer or certificates for
shares of capital stock of the Bank and may appoint one or more transfer agents,
transfer clerks and/or registrars and require all certificates to bear the
signatures thereof. The Bank shall be entitled to treat the holder of record of
any share or shares of capital stock as the owner thereof in fact.
Section 5.3. CLOSING OF TRANSFER BOOKS. The transfer books may be closed
for the purposes of any meeting of shareholders or the payment of dividends or
for any other purpose, at such time and for such period not exceeding 50 days as
the Board may direct. In lieu of closing the transfer books, the Board may, in
its discretion , fix a day and hour not more than 50 days prior to the day
designated for the holding of any meeting of the shareholders or the day
appointed for the payment of any dividend or for any other purpose as the time
as of which shareholders entitled to notice of and to vote at such meeting or
to receive such dividend or to be treated as shareholders for such other purpose
shall be determined, and only shareholders of record at such time shall be
entitled to notice of or to vote at such meeting or to receive such dividends or
to be treated as shareholders for such other purpose.
<PAGE>
7
ARTICLE VI
SEAL
Section 6.1. SEAL. The corporate seal of the Bank shall be a device bearing the
name "The Chase Manhattan Bank (National Assoication)" and otherwise in the form
adopted and used by the Bank, imprinted or affixed by any process. The Secretary
and any other officers authorized by resolution of the Board shall be empowered
to use and attest the corporate seal on all documents.
ARTICLE VII
AMENDMENTS
Section 7.1. Amendments. These By-Laws or any of them may be altered,
amended or repealed, or new By-Laws may be adopted, by the Board at any regular
or special meeting thereof by vote of a majority of the Directors then in
office.
<PAGE>
EXHIBIT 7
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of the THE CHASE MANHATTAN BANK,
N.A. of New York in the State of New York, at the close of business on March 31,
1996, published in response to call made by Comptroller of the Currency, under
title 12, United States Code, Section 161.
<TABLE>
<CAPTION>
CHARTER NUMBER 2370 COMPTROLLER OF THE CURRENCY NORTHEASTERN DISTRICT
STATEMENT OF RESOURCES AND LIABILITIES
ASSETS THOUSANDS
OF DOLLARS
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin. . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 5,026,000
Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,135,000
Held to maturity securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Available-for-sale securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,632,000
Federal funds sold and securities purchased under agreements
to resell in domestic offices of the bank and of its Edge
and Agreement subsidiaries, and in IBFs:
Federal funds sold. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,254,000
Securities purchased under agreements to resell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 880,000
Loans and lease financing receivable:
Loans and leases, net of unearned income. . . . . . . . . . . . . . . . . . . . . . . . $ 60,869,000
LESS: Allowance for loan and lease losses . . . . . . . . . . . . . . . . . . . . . . . 1,113,000
LESS: Allocated transfer risk reserve. . . . . . . . . . . . . . . . . . . . . . . . . 0
------------
Loans and leases, net of unearned income, allowance, and reserve. . . . . . . . . . . . . . . . . . . . . 59,756,000
Assets held in trading accounts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13,203,000
Premises and fixed assets (including capitalized leases) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,690,000
Other real estate owned. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268,000
Investments in unconsolidated subsidiaries and associated companies. . . . . . . . . . . . . . . . . . . . . . 29,000
Customers' liability to this bank on acceptances outstanding . . . . . . . . . . . . . . . . . . . . . . . . . 1,170,000
Intangible assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,330,000
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9,398,000
--------------
TOTAL ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $103,771,000
--------------
--------------
LIABILITIES
Deposits:
In domestic offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 30,681,000
Noninterest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 11,913,000
Interest-bearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18,768,000
--------------
In foreign offices, Edge and Agreement subsidiaries, and IBFs . . . . . . . . . . . . . . . . . . . . . . 38,923,000
Noninterest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 3,696,000
Interest-bearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35,227,000
--------------
Federal funds purchased and securities sold under agreements to
repurchase in domestic offices of the bank and of its Edge and
Agreement subsidiaries, and in IBFs:
Federal funds purchased . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,143,000
Securities sold under agreements to repurchase. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100,000
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25,000
Trading liabilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,453,000
Other borrowed money:
With original maturity of one year or less. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,064,000
With original maturity of more than one year. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 365,000
Mortgage indebtedness and obligations under capitalized leases . . . . . . . . . . . . . . . . . . . . . . . . 39,000
Bank's liability on acceptances executed and outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,173,000
Subordinated notes and debentures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,960,000
Other liabilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,482,000
--------------
TOTAL LIABILITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96,408,000
Limited-life preferred stock and related surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Common stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921,000
Surplus. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,354,000
Undivided profits and capital reserves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,092,000
Net unrealized holding gains (losses) on available-for-sale securities . . . . . . . . . . . . . . . . . . . . 15,000
Cumulative foreign currency translation adjustments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,000
--------------
TOTAL EQUITY CAPITAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7,363,000
--------------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK,
AND EQUITY CAPITAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $103,771,000
--------------
--------------
</TABLE>
I, Lester J. Stephens, Jr., Senior Vice President and Controller of the above
named bank do hereby declare that this Report of Condition is true and correct
to the best of my knowledge and belief. (Signed) Lester J. Stephens, Jr.
We the undersigned directors, attest to the correctness of this statement of
resources and liabilities. We declare that it has been examined by us, and to
the best of our knowledge and belief has been prepared in conformance with the
instructions and is true and correct.
(Signed) Thomas G. Labrecque
(Signed) Donald Trautlein Directors
(Signed) Richard J. Boyle
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________________
FORM T-1
_______________________
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS
TRUSTEE
_______________________
Check if an application to determine eligibility of
a Trustee pursuant to Section 305(b)(2) / /
MELLON BANK, N.A.
(Name of Trustee)
25-0659306 U.S.
(I.R.S. Employer Identification No.) (Jurisdiction of incorporation)
One Mellon Bank Center
Pittsburgh, PA 15258-0001
(Address of Principal Executive Office)
ELAINE D. RENN
Vice President
MELLON BANK, N.A.
ONE MELLON BANK CENTER
PITTSBURGH, PENNSYLVANIA 15258-0001
(412) 234-4694
(Name, Address and Telephone Number of Agent for Service)
_______________________
UNUM CORPORATION
(Name of Obligor)
DELAWARE
(State or Other Jurisdiction of Incorporation or Organization)
01-0405657
(I.R.S. Employer Identification No.)
2211 Congress Street, Portland, Maine 04122
(Address of Principal Executive Offices)
SUBORDINATED DEBT SECURITIES
(Title of Indenture Securities)
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE --
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
Comptroller of the Currency Washington, D.C.
Federal Reserve Bank of Cleveland Cleveland, Ohio
Federal Deposit Insurance Corporation Washington, D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE OF THE
TRUSTEE, DESCRIBE EACH SUCH AFFILIATION.
The obligor is not an affiliate of the trustee.
ITEMS 3-15 ARE NOT APPLICABLE SINCE THE OBLIGOR IS NOT IN DEFAULT ON SECURITIES
ISSUED UNDER INDENTURES UNDER WHICH THE APPLICANT IS TRUSTEE.
16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS
STATEMENT OF ELIGIBILITY.
Exhibit 1 - Copy of articles of association of the trustee as now
in effect, filed as Exhibit 1 to trustee's statement of
eligibility and qualification, Registration No. 33-
46990, and incorporated herein by reference.
Exhibit 2 - Copy of certificate of the authority of the trustee to
commence business, copy of certificate of consolidation
with the Union Trust Company of Pittsburgh and copy of
certificate approving merger of Mellon National Bank
and Trust Company into Mellon Bank, N.A. filed as
Exhibit T1A(b) to trustee's statement of eligibility
and qualification, Registration No. 33-13020, and
incorporated herein by reference.
Exhibit 3 - Copy of certificate as to authority of the trustee to
exercise corporate trust powers, filed as Exhibit
T1A(c) to trustee's statement of eligibility and
qualification, Registration No. 33-13020, and
incorporated herein by reference.
Exhibit 4 - Copy of existing by-laws of the trustee, filed as
Exhibit 4 to trustee's statement of eligibility and
qualification, Registration No. 33-46990, and
incorporated herein by reference.
Exhibit 5 - Copy of each indenture referred to in Item 4, if the
obligor is in default. Not Applicable.
Exhibit 6 - Consent of the trustee required by Section 321(b) of
the Act, filed as Exhibit T1D to trustee's statement of
eligibility and qualification, Registration No. 33-
13020, and incorporated herein by reference.
Exhibit 7 - Copy of the latest report of condition of the trustee
transmitted electronically pursuant to law or the
requirements of its supervising or examining authority.
1
<PAGE>
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE TRUST INDENTURE ACT OF 1939, THE
TRUSTEE, MELLON BANK, N.A., A NATIONAL BANKING ASSOCIATION ORGANIZED AND
EXISTING UNDER THE LAWS OF THE UNITED STATES OF AMERICA, HAS DULY CAUSED THIS
STATEMENT OF ELIGIBILITY TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO DULY AUTHORIZED, ALL IN THE CITY OF PITTSBURGH, AND COMMONWEALTH OF
PENNSYLVANIA, ON THE 11TH DAY OF JULY 1996.
MELLON BANK, N.A.
TRUSTEE
By: /s/ Elaine D. Renn
------------------
Elaine D. Renn
Vice President
2
<PAGE>
EXHIBIT 7
REPORT OF CONDITION
CONSOLIDATING DOMESTIC AND FOREIGN SUBSIDIARIES OF
MELLON BANK, N.A.
FOR MARCH 31, 1996
IN THE COMMONWEALTH OF PENNSYLVANIA, AT THE CLOSE OF BUSINESS ON MARCH 31,
1996; TRANSMITTED ELECTRONICALLY IN RESPONSE TO CALL MADE BY COMPTROLLER OF THE
CURRENCY, UNDER TITLE 12, UNITED STATES CODE, SECTION 161.
CHARTER NO. 6301 NORTHEASTERN DISTRICT
<TABLE>
<CAPTION>
STATEMENT OF RESOURCES AND LIABILITIES
(in thousands)
<S> <C> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin. . . . . . . . . . . . . . . . . . . . . . . . . $ 2,551,023
Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,238,899
Securities:
Held-to-maturity securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,439,004
Available-for-sale securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,099,006
Federal funds sold and securities purchased under agreements
to resell in domestic offices of the bank and of its
Edge and Agreement subsidiaries, and in IBFs:
Federal funds sold. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702,797
Securities purchased under agreements to resell . . . . . . . . . . . . . . . . . . . . . . . . . . 30,000
Loans and lease financing receivables:
Loans and leases, net of unearned income. . . . . . . . . . . . . . . . . . . . $ 22,883,119
LESS: Allowance for loan and lease losses. . . . . . . . . . . . . . . . . . . 307,557
Loans and leases, net of unearned income, allowance, and reserve. . . . . . . . . . . . . . . . . . 22,575,562
Assets held in trading accounts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267,077
Premises and fixed assets (including capitalized leases) . . . . . . . . . . . . . . . . . . . . . . . . 471,772
Other real estate owned. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61,625
Customers' liability to this bank on acceptances outstanding . . . . . . . . . . . . . . . . . . . . . . 245,337
Intangible assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,092,534
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,476,962
TOTAL ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36,251,598
LIABILITIES
Deposits:
In domestic offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22,173,508
Noninterest-bearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,940,994
Interest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15,232,514
In foreign offices, Edge and Agreement subsidiaries, and IBFs . . . . . . . . . . . . . . . . . . . 3,670,489
Noninterest-bearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21,548
Interest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,648,941
Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of its
Edge and Agreement subsidiaries, and in IBFs:
Federal funds purchased . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,113,635
Securities sold under agreements to repurchase. . . . . . . . . . . . . . . . . . . . . . . . . . . 1,256,071
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319,803
Trading liabilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247,310
Other borrowed money:
With remaining maturity of one year or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,560,260
With remaining maturity of more than one year . . . . . . . . . . . . . . . . . . . . . . . . . . . 164,882
Mortgage indebtedness and obligations under capitalized leases . . . . . . . . . . . . . . . . . . . . . 2,898
Bank's liability on acceptances executed and outstanding . . . . . . . . . . . . . . . . . . . . . . . . 245,337
Subordinated notes and debentures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 698,251
Other liabilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 802,115
TOTAL LIABILITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33,245,559
EQUITY CAPITAL
Common stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167,285
Surplus (exclude all surplus related to preferred stock) . . . . . . . . . . . . . . . . . . . . . . . . 831,676
Undivided profits and capital reserves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,028,643
Net unrealized holding gains (losses) on available-for-sale securities . . . . . . . . . . . . . . . . . (23,949)
Cumulative foreign currency translation adjustments. . . . . . . . . . . . . . . . . . . . . . . . . . . (6,616)
TOTAL EQUITY CAPITAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,997,039
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK, AND EQUITY CAPITAL. . . . . . . . . 36,251,598
</TABLE>
3
<PAGE>
I, Michael K. Hughey, Senior Vice President and Corporate Controller of the
above-named bank, do hereby declare that this Report of Condition is true and
correct to the best of my knowledge and belief.
Michael K. Hughey
May 6, 1996
We, the undersigned directors, attest to the correctness of this Statement
of Resources and Liabilities. We declare that it has been examined by us, and
to the best of our knowledge and belief has been prepared in conformance with
the instructions and is true and correct.
FRANK V. CAHOUET
W. KEITH SMITH
CHARLES A. CORRY
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