8-K
GLOBE LIFE INC. (GL)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 14, 2021 (June 9, 2021)
GLOBE LIFE INC.
(Exact name of registrant as specified in its charter)
| Delaware | 001-08052 | 63-0780404 |
|---|---|---|
| (State or other jurisdiction<br> <br>of incorporation) | (Commission<br> <br>File No.) | (I.R.S. Employer<br> <br>ID No.) |
| 3700 South Stonebridge Drive, McKinney, Texas 75070 | ||
| --- | ||
| (Address of principal executive offices) (Zip Code) |
Registrant’s telephone number, including area code: (972) 569-4000
N/A
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|---|---|
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a.-12) |
| --- | --- |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| --- | --- |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| --- | --- |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading<br> <br>symbol(s) | Name of each exchanged<br> <br>on which registered |
|---|---|---|
| Common Stock, $1.00 par value per share | GL | New York Stock Exchange |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter):
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 1.01 | Entry into a Material Definitive Agreement |
|---|
On June 14, 2021, Globe Life Inc. (“Globe Life”) completed the issuance and sale of $325,000,000 aggregate principal amount of 4.250% Junior Subordinated Debentures due 2061 (the “Debentures”). In connection with the offering of the Debentures, Globe Life entered into an Underwriting Agreement dated June 9, 2021 (the “Underwriting Agreement”) with BofA Securities Inc., Morgan Stanley & Co., LLC and Wells Fargo Securities, LLC, as representatives of the several underwriters named on Schedule A thereto. A copy of the Underwriting Agreement is attached as Exhibit 1.1 hereto and incorporated by reference herein.
The estimated net proceeds to Globe Life from the offering of the Debentures are approximately $317.2 million, after deducting underwriting discounts and commissions and estimated offering expenses payable by Globe Life. Globe Life intends to use the net proceeds from the sale of the Debentures to redeem the $300 million outstanding principal amount of its 6.125% Junior Subordinated Debentures due 2056, with the remainder to be used for general corporate purposes.
The offering of the Debentures was completed pursuant to the prospectus, filed as part of Globe Life’s shelf registration statement on Form S-3 (File No. 333-256848) (the “Registration Statement”), as supplemented by a prospectus supplement in preliminary form dated June 9, 2021 and in final form dated June 9, 2021.
The Debentures were issued under the Junior Subordinated Indenture, dated as of November 2, 2001 (as supplemented, the “Subordinated Indenture”), between Globe Life and Regions Bank, as trustee (as successor trustee to The Bank of New York Mellon Trust Company, N.A. and The Bank of New York), as supplemented by a Fourth Supplemental Indenture (the “Fourth Supplemental Indenture”), dated as of June 14, 2021 between Globe Life and Regions Bank, as trustee.
The Debentures bear interest at a fixed annual rate of 4.250%, accruing from the original date of issuance. Globe Life will pay interest on the Debentures quarterly in arrears on March 15, June 15, September 15 and December 15 of each year, commencing on September 15, 2021. The Debentures will mature on June 15, 2061.
So long as no event of default with respect to the Debentures has occurred and is continuing, Globe Life has the right, on one or more occasions, to defer the payment of interest on the Debentures, as described in the Fourth Supplemental Indenture, for up to five consecutive years without giving rise to an event of default. During a deferral period, interest will continue to accrue at the interest rate on the Debentures, compounded quarterly as of each interest payment date to the extent permitted by applicable law.
The Debentures are subject to optional redemption. Globe Life may redeem the Debentures in whole at any time or in part from time to time on or after June 15, 2026, at a redemption price equal to their principal amount plus accrued and unpaid interest (including compounded interest, if any) to, but excluding, the date of redemption. Prior to June 15, 2026, Globe Life may also redeem the debentures in whole, but not in part, at any time within 90 days of the occurrence of (i) a “tax event” or a “regulatory capital event” (as described in the Fourth Supplemental Indenture), in each case at a redemption price equal to the principal amount of debentures being redeemed plus accrued and unpaid interest (including compounded interest, if any) to, but excluding, the date of redemption, or (ii) a “rating agency event” (as described in the Fourth Supplemental Indenture) at a redemption price equal to 102% of their principal amount plus accrued and unpaid interest (including compounded interest, if any) to, but excluding, the
date of redemption.
The Debentures are unsecured, subordinated obligations of Globe Life and will rank equally in right of payment with (i) Globe Life’s existing 6.125% Junior Subordinated Debentures due 2056 (which Globe Life intends to redeem with the net proceeds from the offering of the Debentures) and 5.275% Junior Subordinated Debentures due 2057, (ii) any indebtedness incurred for the purchase of goods or material or for services obtained in the ordinary course of business, (iii) indebtedness owed by Globe Life to its subsidiaries, (iv) indebtedness owed by Globe Life to its employees and (v) any indebtedness the terms of which provide that such indebtedness ranks equally with the Debentures, including guarantees of such indebtedness; senior in right of payment to any indebtedness the terms of which provide that such indebtedness ranks junior to the Debentures; and junior in right of payment to all other indebtedness. The Indenture governing the Debentures does not limit the amount of debt that Globe Life or Globe Life’s subsidiaries may issue or incur.
The foregoing descriptions of the Subordinated Indenture, the Fourth Supplemental Indenture, and the Debentures do not purport to be complete and are qualified in their entirety by reference to the full text of such documents, which are attached or incorporated by reference as Exhibits 4.1, 4.2, and 4.3 hereto, respectively, which are incorporated herein by reference
| Item 2.03 | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
|---|
The information set forth in Item 1.01 is incorporated by reference into this Item 2.03.
| Item 9.01 | Financial Statements and Exhibits |
|---|---|
| (d) | Exhibits |
| --- | --- |
The documents filed herewith are incorporated by reference into Globe Life Inc.’s Registration Statement on Form S-3, File Number 333-256848.
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| GLOBE LIFE INC. | |
|---|---|
| Date: June 14, 2021 | |
| /s/ Christopher T. Moore | |
| Christopher T. Moore <br>Corporate Senior Vice President, <br>Associate Counsel and Corporate Secretary |
EX-1.1
Exhibit 1.1
GLOBE LIFE INC.
(aDelaware corporation)
$325,000,000
4.250% Junior Subordinated Debentures Due 2061
UNDERWRITING AGREEMENT
June 9, 2021
GLOBE LIFE INC.
(a Delaware corporation)
$325,000,000
4.250% Junior Subordinated Debentures due 2061
UNDERWRITING AGREEMENT
June 9, 2021
BofA Securities, Inc.
Morgan Stanley & Co. LLC
Wells Fargo Securities, LLC
as Representatives of the several Underwriters
named in Schedule A hereto
c/o BofA Securities, Inc.
One Bryant Park
New York, New York 10036
c/o Morgan Stanley & Co. LLC
1585 Broadway
New York, New York 10036
c/o Wells Fargo Securities, LLC
550 South Tryon Street, 5th Floor
Charlotte, North Carolina 28202
Ladies and Gentlemen:
Globe Life Inc., a Delaware corporation (the “Company”), proposes to issue and sell to the several underwriters named in Schedule A hereto (the “Underwriters”), acting severally and not jointly, $325,000,000 aggregate principal amount of the Company’s 4.250% Junior Subordinated Debentures due 2061 (the “Securities”). BofA Securities, Inc., Morgan Stanley & Co. LLC and Wells Fargo Securities, LLC have agreed to act as representatives of the several Underwriters (in such capacity, the “Representatives”) in connection with the offer and sale of the Securities. The Securities will be issued pursuant to an indenture dated as of November 2, 2001 (the “Base Indenture”) between the Company and The Bank of New York (the “Original Trustee”), as supplemented by a Fourth Supplemental Indenture to be dated as of June 14, 2021 (the “SupplementalIndenture” and, together with the Base Indenture, the “Indenture”) between the Company and Regions Bank (successor in interest to the Original Trustee), as trustee under the Indenture (the “Trustee”).
1
The Company has filed with the Securities and Exchange Commission (the “Commission”) an automatic shelf registration statement on Form S-3 (No. 333-256848), including the related preliminary prospectus or prospectuses, which registration statement became effective upon filing under Rule 462(e) of the rules and regulations of the Commission (the “Securities Act Regulations”) under the Securities Act of 1933, as amended (the “Securities Act”). Such registration statement covers the registration of the Securities under the Securities Act. Promptly after execution and delivery of this Agreement, the Company will prepare and file a prospectus in accordance with the provisions of Rule 430B (“Rule 430B”) of the Securities Act Regulations and paragraph (b) of Rule 424 (“Rule 424(b)”) of the Securities Act Regulations. Any information included in such prospectus that was omitted from such registration statement at the time it became effective but that is deemed to be part of and included in such registration statement pursuant to Rule 430B is referred to as “Rule 430B Information.” Each prospectus used in connection with the offering of the Securities that omitted Rule 430B Information is herein called a “preliminary prospectus.” Such registration statement, at any given time, including the amendments thereto at such time, the exhibits and any schedules thereto at such time, the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act at such time and the documents otherwise deemed to be a part thereof or included therein by the Securities Act Regulations, is herein called the “Registration Statement.” The Registration Statement at the time it originally became effective is herein called the “OriginalRegistration Statement.” The final prospectus in the form first furnished to the Underwriters for use in connection with the offering of the Securities, including the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act at the time of the execution of this Agreement and any preliminary prospectuses that form a part thereof, is herein called the “Prospectus.” For purposes of this Agreement, all references to the Registration Statement, any preliminary prospectus, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system (“EDGAR”).
All references in this Agreement to financial statements and schedules and other information which is “contained,” “included” or “stated” in the Registration Statement, any preliminary prospectus or the Prospectus (or other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information which is incorporated by reference in or otherwise deemed by the Securities Act Regulations to be a part of or included in the Registration Statement, any preliminary prospectus or the Prospectus, as the case may be; and all references in this Agreement to amendments or supplements to the Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to mean and include the filing of any document under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), which is incorporated by reference in or otherwise deemed by the Securities Act Regulations to be a part of or included in the Registration Statement, such preliminary prospectus or the Prospectus, as the case may be.
2
The Company and the Underwriters agree as follows:
Public Offering. The Company is advised by the Representatives that the Underwriters propose to make a public offering of their respective portions of the Securities as soon after this Agreement is entered into as in the Representatives’ judgment is advisable. The terms of the public offering of the Securities are set forth in the Prospectus.
Securities. On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase from the Company, the aggregate principal amount of Securities set forth in Schedule A opposite the name of such Underwriter, plus any additional principal amount of Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 11 hereof, at a purchase price of $24.2125 per Security for retail orders ($9,491,300 in the aggregate) and $24.5000 per Security for institutional orders ($308,896,000 in the aggregate), representing an aggregate purchase price of $318,387,300.
Payment. Payment of the purchase price for, and delivery of certificates for, the Securities shall be made at the offices of Davis Polk & Wardwell LLP, 1600 El Camino Real, Menlo Park, California 94025, or at such other place as shall be agreed upon by the Representatives and the Company, at 10:00 A.M. (Eastern time) on the third business day after the date hereof (unless postponed in accordance with the provisions of Section 11), or such other time not later than five business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “Closing Time”).
Denominations; Registration. Certificates for the Securities shall be in denominations of $25 and integral multiples of $25 and registered in such names as the Representatives may request in writing at least one full business day before the Closing Time. The Securities will be made available for examination and packaging by the Representatives in The City of New York not later than 10:00 A.M. (Eastern time) on the business day prior to the Closing Time.
Payment shall be made to the Company by wire transfer of immediately available funds to a bank account designated by the Company, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Securities to be purchased by them. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Securities which it has agreed to purchase. BofA Securities, Inc., Morgan Stanley & Co. LLC and Wells
3
Fargo Securities, LLC, each individually and not as representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Securities to be purchased by any Underwriter whose funds have not been received by the Closing Time, but such payment shall not relieve such Underwriter from its obligations hereunder.
- Conditions of Underwriters ’ Obligations. The several obligations of the Underwriters hereunder are subject to the accuracy of the representations and warranties on the part of the Company herein on and at the Closing Time, to the performance by the Company of its obligations hereunder and to the following additional conditions precedent:
(a) Subsequent to the execution and delivery of the Underwriting Agreement and prior to the Closing Time:
(i) (1) at the Closing Time, the Securities shall be rated as described in the Final Term Sheet (as defined below), and the Company shall have delivered to the Representatives a letter dated the Closing Time, from each applicable rating agency, or other evidence satisfactory to the Representatives, confirming that the Securities have such ratings; and (2) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Securities or any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as such term is defined in Section 3(a)(62) of the Exchange Act);
(ii) the Registration Statement is effective, and at the Closing Time, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters. A prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). The Company shall have paid the required Commission filing fees relating to the Securities within the time period required by Rule 456(b)(1)(i) of the Securities Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b);
4
(iii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business, operations or prospects of the Company and its subsidiaries, taken as a whole, from that set forth in the General Disclosure Package (as defined below) that, in the Representatives’ reasonable judgment, is material and adverse and that makes it, in the Representatives’ reasonable judgment, impracticable to market the Securities on the terms and in the manner contemplated in the General Disclosure Package; and
(iv) the Representatives shall have received at the Closing Time, a certificate dated the Closing Time and signed by an executive officer of the Company, or any other person authorized by the Board of Directors of the Company to execute any such written statement (an “Executive Officer”),
(A) to the effect set forth in Section 5(a)(i)(2);
(B) to the effect that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or, to their knowledge, contemplated by the Commission; and
(C) to the effect that the representations and warranties of the Company contained in this Agreement are true and correct at the Closing Time and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied on or before the Closing Time.
The Executive Officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(b) The Underwriters shall have received at the Closing Time an opinion of R. Brian Mitchell, Esq., Executive Vice President, General Counsel and Chief Risk Officer for the Company, dated the Closing Time in substantially the form set forth as Exhibit A.
(c) The Underwriters shall have received at the Closing Time an opinion of McAfee & Taft A Professional Corporation, special counsel for the Company, dated the Closing Time in substantially the form set forth as Exhibit B.
5
(d) The Underwriters shall have received at the Closing Time an opinion of Davis Polk & Wardwell LLP, counsel for the Underwriters, dated the Closing Time in form and substance reasonably satisfactory to the Representatives.
(e) The Underwriters shall have received (i) on the date of this Agreement a letter dated such date and (ii) at the Closing Time a letter dated the Closing Time, in each case in form and substance satisfactory to the Underwriters, from Deloitte & Touche LLP, the Company’s independent registered public accounting firm, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus.
If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Representatives by notice to the Company at any time at or prior to the Closing Time, and such termination shall be without liability of any party to any other party except as provided in Section 6(k) and except that Sections 8, 9 and 10 shall survive any such termination and remain in full force and effect.
- Certain Covenants of the Company. In further consideration of the agreements of the Underwriters contained in this Agreement, the Company covenants as follows:
(a) Compliance with Securities Regulations and Commission Requests; Payment of Filing Fees. The Company, subject to Section 6(b), will comply with the requirements of Rule 430B and will notify the Representatives immediately, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement or new registration statement relating to the Securities shall become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission with respect to any filing by the Company with the Commission under the Securities Act or Exchange Act, (iii) of any request by the Commission for any amendment to the Registration Statement or the filing of a new registration statement or any amendment or supplement to the Prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or such new registration statement or of any order preventing or suspending the use of any preliminary prospectus, or of the
6
suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Securities. The Company will effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment. The Company shall pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1)(i) of the Securities Act Regulations (without regard to the proviso therein) and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)).
(b) Filing of Amendments and Exchange Act Documents; Preparation of Final Term Sheet. The Company will give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement or new registration statement relating to the Securities or any amendment, supplement or revision to either any preliminary prospectus (including any prospectus included in the Original Registration Statement or amendment thereto at the time it became effective) or to the Prospectus or to any Issuer Free Writing Prospectus (as defined below), whether pursuant to the Securities Act, the Exchange Act or otherwise, and the Company will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Representatives or counsel for the Underwriters shall object. The Company has given the Representatives notice of any filings made pursuant to the Exchange Act or Exchange Act Regulations within 48 hours prior to the Applicable Time (as defined below); the Company will give the Representatives notice of its intention to make any such filing from the Applicable Time to the Closing Time and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing and will not file or use any such document to which the Representatives or counsel for the Underwriters shall reasonably object. The Company will prepare a final term sheet (the “Final Term Sheet”) reflecting the final terms of the
7
Securities, in form and substance satisfactory to the Representatives, and shall file such Final Term Sheet as an “issuer free writing prospectus” pursuant to Rule 433 of the Securities Act Regulations (“Rule 433”) prior to the close of business two business days after the date hereof; provided that the Company shall furnish the Representatives with copies of any such Final Term Sheet a reasonable amount of time prior to such proposed filing and will not use or file any such document to which the Representatives or counsel to the Underwriters shall object.
(c) Delivery of Registration Statements. The Company has furnished or will deliver to the Representatives and counsel for the Underwriters, without charge, one signed facsimile copy of the Original Registration Statement and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein or otherwise deemed to be a part thereof) and signed facsimile copies of all consents and certificates of experts. The copies of the Original Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each Underwriter, without charge, as many copies of each preliminary prospectus as such Underwriter reasonably requested, and the Company consents to the use of such copies for purposes permitted by the Securities Act. The Company will furnish to each Underwriter, without charge, during the period when the Prospectus is required to be delivered under the Securities Act, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply with the Securities Act and the Securities Act Regulations, the Exchange Act and the Exchange Act Regulations and the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and the rules and regulations thereunder (the “Trust Indenture ActRegulations”) so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Securities, any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order
8
that the Prospectus will not include any untrue statements of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of such counsel, at any such time to amend the Registration Statement or to file a new registration statement or amend or supplement the Prospectus in order to comply with the requirements of the Securities Act or the Securities Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 6(b), such amendment, supplement or new registration statement as may be necessary to correct such statement or omission or to comply with such requirements, the Company will use its best efforts to have such amendment or new registration statement declared effective as soon as practicable (if it is not an automatic shelf registration statement with respect to the Securities) and the Company will furnish to the Underwriters such number of copies of such amendment, supplement or new registration statement as the Underwriters may reasonably request. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement (or any other registration statement relating to the Securities) or the Statutory Prospectus (as defined below) or any preliminary prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Company will promptly notify the Representatives and, subject to Section 6(b), will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(f) Listing of Securities. The Company will use its commercially reasonable efforts to effect the listing of the Securities on the New York Stock Exchange within 30 days of the Closing Time.
(g) Blue Sky Qualifications. To qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Representatives shall reasonably request and to pay all reasonable expenses (including fees and disbursements of counsel) in connection with such qualification; 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; and provided further that in connection therewith the Company shall not be required to qualify the Securities for offering and sale under the securities laws of any such jurisdiction for a period in excess of nine months after the initial time of issue of the Prospectus.
9
(h) Rule 158. To make generally available to the Company’s security holders as soon as practicable an earnings statement of the Company covering a twelve month period beginning after the date of this Agreement (but in no event commencing later than 90 days after such date), which shall satisfy the provisions of Section 11(a) of the Securities Act and the Securities Act Regulations and to advise the Representatives in writing when such statement has been made available.
(i) Restrictions on Sale of Securities. During a period of 90 days from the date of this Agreement, without the prior written consent of the Representatives, on behalf of the Underwriters, not to offer, sell, contract to sell, grant any option for the sale of, pledge, transfer or establish an open “put equivalent position” within the meaning of Rule 16a-1 under the Exchange Act or otherwise dispose of, transfer or announce the offering of, or file any registration statement under the Securities Act in respect of, any debt securities of the Company or securities convertible into or exercisable or exchangeable for or that represent the right to receive debt securities of the Company (other than as contemplated by this Agreement).
(j) Issuer Free Writing Prospectuses*.* The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an “issuer free writing prospectus,” as defined in Rule 433, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission; provided, however, that the Underwriters are authorized to use, without the prior consent of the Company, a free writing prospectus that contains only (i) information describing only the preliminary or final terms of the Securities or the offering thereof and that is included in the Final Term Sheet contemplated by Section 6(b) or (ii) other information that is not “issuer information,” as defined in Rule 433 under the Securities Act. Any free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
10
(k) Payment of Expenses. Whether or not any sale of Securities is consummated, to pay or cause to be paid all expenses incident to the performance of the obligations of the Company under this Agreement, including, without limitation: (i) the preparation and filing of the Registration Statement, each preliminary prospectus, any Permitted Free Writing Prospectus and the Prospectus and all amendments and supplements thereto, (ii) the preparation, issuance and delivery of the Securities, (iii) the fees and disbursements of the Company’s counsel and accountants, (iv) the qualification of the Securities under securities or Blue Sky laws in accordance with the provisions of Section 6(g), including filing fees and the fees and disbursements of counsel for the Underwriters in connection therewith and in connection with the printing or producing and delivery of any Blue Sky or legal investment memoranda, (v) the printing and delivery to the Underwriters in quantities as hereinabove stated of copies of the Registration Statement, each preliminary prospectus, any Permitted Free Writing Prospectus and the Prospectus and any amendments or supplements thereto and any costs associated with electronic delivery of any of the foregoing by the Underwriters to the investors, (vi) any fees charged by rating agencies for the rating of the Securities, (vii) all fees and expenses in connection with the preparation and filing of the registration statement on Form 8-A relating to the Securities and all costs and expenses incident to listing the Securities on the New York Stock Exchange and (viii) the costs and expenses (including without limitation any damages or other amounts payable in connection with legal or contractual liability) associated with the reforming of any contracts for the sale of the Securities made by the Underwriters caused by a breach of the representations contained in the sixth and seventh paragraphs of Section 7(b).
- Representations and Warranties of the Company. The Company represents and warrants to each Underwriter as of the date hereof, the Applicable Time referred to in Section 7(b)and at the Closing Time, and agrees with each Underwriter as follows:
(a) Status as a Well-Known Seasoned Issuer. (A) At the time of filing the Original Registration Statement, (B) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (C) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) of the Securities Act Regulations) made any offer relating to the Securities in reliance on the exemption of Rule 163 of the Securities Act Regulations and (D) at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 of the Securities Act Regulations (“Rule 405”), including not having been and not being an “ineligible issuer” as defined in Rule 405. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405, and the Securities, since their registration on the Registration Statement, have been and remain eligible for registration by the Company on a Rule 405 “automatic shelf registration statement.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act Regulations objecting to the use of the automatic shelf registration statement form.
11
At the time of filing the Original Registration Statement, at the earliest time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the Securities Act Regulations) of the Securities and at the date hereof, the Company was not and is not an “ineligible issuer,” as defined in Rule 405.
(b) Registration Statement, Prospectus and General Disclosure Package. The Original Registration Statement became effective upon filing under Rule 462(e) of the Securities Act Regulations (“Rule 462(e)”) on June 7, 2021, and any post-effective amendment thereto also became effective upon filing under Rule 462(e). No stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with.
Any offer that is a written communication relating to the Securities made prior to the filing of the Original Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) of the Securities Act Regulations) has been filed with the Commission in accordance with the exemption provided by Rule 163 of the Securities Act Regulations (“Rule 163”) and otherwise complied with the requirements of Rule 163, including without limitation the legending requirement, to qualify such offer for the exemption from Section 5(c) of the Securities Act provided by Rule 163. The Company has not engaged in any “Testing-the-Waters” communication with potential investors in reliance on Section 5(d) or Rule 163B of the Securities Act.
At the respective times the Original Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the Securities Act Regulations and at the Closing Time, the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act and the Securities Act Regulations and the Trust Indenture Act and the Trust Indenture Act Regulations, and did not 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.
12
Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued and at the Closing Time, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Each preliminary prospectus (including the prospectus or prospectuses filed as part of the Original Registration Statement or any amendment thereto) complied when so filed in all material respects with the Securities Act Regulations and each preliminary prospectus and the Prospectus delivered to the Underwriters for use in connection with this offering was identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
As of the Applicable Time, neither (x) the Issuer General Use Free Writing Prospectus(es) (as defined below) issued at or prior to the Applicable Time, the Statutory Prospectus (as defined below) and the information included on Schedule B hereto, all considered together (collectively, the “General DisclosurePackage”), nor (y) any individual Issuer Limited Use Free Writing Prospectus (as defined below), when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
As of the time of the filing of the Final Term Sheet, the General Disclosure Package, when considered together with the Final Term Sheet (as defined in Section 6(b)), will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
As used in this subsection and elsewhere in this Agreement:
“Applicable Time” means 3:00 P.M. (Eastern time) on June 9, 2021 or such other time as agreed by the Company and the Representatives.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433, relating to the Securities that (i) is required to be filed with the Commission by the Company, (ii) is a “road show that is a written communication” within the meaning of Rule 433(d)(8)(i), whether or not required to be filed with the Commission or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Securities or of the offering that does not reflect the final terms, in each case in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g).
13
“Issuer General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution to prospective investors, as evidenced by its being specified in Schedule C hereto.
“Issuer Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General Use Free Writing Prospectus.
“Statutory Prospectus” as of any time means the prospectus relating to the Securities that is included in the Registration Statement immediately prior to that time, including any document incorporated by reference therein and any preliminary or other prospectus deemed to be a part thereof.
Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Securities or until any earlier date that the issuer notified or notifies the Representatives as described in Section 6(e), did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein and any preliminary or other prospectus deemed to be a part thereof that has not been superseded or modified.
The representations and warranties in this subsection shall not apply to the Underwriter Information (as defined in Section 8) or to that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the trustees referred to in the Registration Statement.
(c) Incorporated Documents. The documents incorporated or deemed to be incorporated by reference in the Registration Statement and the Prospectus, at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder (the “Exchange Act Regulations”) and, when read together with the other information in the Prospectus, (a) at the time the Original Registration Statement became effective, (b) at the earlier of the time the Prospectus was first used and the date and time of the first contract of sale of Securities in this offering and (c) at the Closing Time, did not 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.
14
(d) Good Standing of Company. The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Delaware, has all requisite corporate power and authority to own, lease and operate its properties and to conduct its business as described in the General Disclosure Package and the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(e) Good Standing of Significant Subsidiaries. Each “significant subsidiary” (within the meaning of Rule 1-02 under Regulation S-X promulgated by the Commission) (the “Significant Subsidiaries”) of the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has all requisite corporate power and authority to own, lease and operate its properties and to conduct its business as described in the General Disclosure Package and the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; all of the issued shares of capital stock of each Significant Subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims.
(f) Capitalization. The authorized, issued and outstanding capital stock of the Company as of the date of this Agreement is as set forth in the column entitled “Actual” and in the corresponding line items under the caption “Capitalization” in the General Disclosure Package and the Prospectus (except for subsequent issuances, if any, pursuant to employee or director stock option, stock purchase or other equity incentive plans described in the General Disclosure Package and the Prospectus or upon the exercise of options issued under such plans). To the knowledge of the Company, the shares of issued and outstanding capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable and were issued in compliance with all applicable state and federal securities and “blue-sky” laws; and, to the knowledge of the Company, none of the outstanding shares of capital stock of the Company were issued in violation of any preemptive rights, rights of first refusal or other similar rights of any securityholder of the Company or any other person.
15
(g) Insurance. Each of the Company and the Significant Subsidiaries engaged in the business of insurance is duly organized and licensed as an insurance company or an insurance holding company, as the case may be, in its respective jurisdiction of incorporation (if so required) and, in the case of the Company, each other jurisdiction where it is required to be so licensed or authorized to conduct its business, and, in the case of the Significant Subsidiaries engaged in the business of insurance, each other jurisdiction in which such Significant Subsidiary has written 5% or more of the total amount of premiums written by it during each of the last two calendar years, except for any such jurisdictions in which the failure to be so licensed or authorized would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; neither the Company nor any Significant Subsidiary engaged in the business of insurance has received any notification from any insurance regulatory authority to the effect that any additional authorization, approval, order, consent, license, certificate, permit, registration or qualification from such insurance regulatory authority is needed to be obtained by the Company or any such Significant Subsidiary in any case where it would be reasonably expected that failure to obtain any such additional authorization, approval, order, consent, license, certificate, permit, registration or qualification would have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(h) Authorization of Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(i) Authorization of the Indenture. The Base Indenture has been duly qualified under the Trust Indenture Act. The Indenture has been duly authorized by the Company, and the Base Indenture is and, upon execution and delivery of the Supplemental Indenture by the Company, the Indenture, at the Closing Time, will be (assuming in each case due authorization, execution and delivery by the Trustee), a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as the enforceability thereof (i) may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, liquidation, moratorium and other similar laws affecting creditors’ rights generally and (ii) is subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law.
16
(j) Authorization of Securities. The Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture, and delivered and paid for in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture, and will be valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the enforceability thereof (i) may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, liquidation, moratorium and other similar laws affecting creditors’ rights generally and (ii) is subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law.
(k) Description of Securities and Indenture. Each of the Securities and the Indenture conforms in all material respects to the description thereof contained in the General Disclosure Package and the Prospectus.
(l) Absence of Defaults and Conflicts of the Company. The execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement and the Indenture and the issuance and sale of the Securities as contemplated in this Agreement will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Company or any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary.
(m) No Violation of Organizational Documents. Neither the Company nor any Significant Subsidiary is in violation of its certification of incorporation or by-laws; neither the Company or any Significant Subsidiary is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound, except for such defaults that will not have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(n) No Material Adverse Change. There has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business, operations or prospects of the Company and its subsidiaries, taken as a whole, from that set forth in the General Disclosure Package and the Prospectus.
17
(o) Absence of Proceedings. There are no legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject that are required to be described in the General Disclosure Package and the Prospectus and are not so described or any statutes, regulations, contracts or other documents that are required to be described in the General Disclosure Package and the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required.
(p) Absence of Further Requirements. No consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, the Indenture or the Securities except such as have been obtained or may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Securities.
(q) FINRA Matters. The offering of the Securities satisfies one or more of the conditions set forth in Rule 5110(b)(7)(A), (B) or (C)(i) of the Financial Industry Regulatory Authority, Inc.
(r) No Security Breach. (A) Except as may be included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus, (x) there has been no material security breach or other material compromise of or relating to any of the Company’s or its subsidiaries’ information technology and computer systems, networks, hardware, software, data (including the data of their respective customers, employees, suppliers, vendors and any third party data maintained by or on behalf of them), equipment or technology (collectively, “IT Systems and Data”) and (y) the Company and its subsidiaries have not been notified of any material security breach or other material compromise to their IT Systems and Data; (B) the Company and its subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification, except as would not, in the case of this clause (B), individually or in the aggregate, have a material adverse effect on the financial condition, business or properties of the Company and its subsidiaries, taken as a whole; and (C) the Company and its subsidiaries have implemented backup and disaster recovery technology consistent with industry standards and practices.
(s) Investment Company Act. The Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
18
(t) Taxes. The Company and its subsidiaries have paid all federal, state, local and foreign taxes and filed all tax returns required to be paid or filed through the date hereof except as would not reasonably be expected, individually or in the aggregate, to have a material adverse effect on the Company and its subsidiaries, taken as a whole; and except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, there is no tax deficiency that has been, or would reasonably be expected to be, asserted against the Company or any of its subsidiaries or any of their respective properties or assets, in each case, except as would not reasonably be expected, individually or in the aggregate, to have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(u) Environmental Laws. The Company and its subsidiaries (i) are in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“EnvironmentalLaws”), (ii) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(v) Environmental Costs and Liabilities. There are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties) which would, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(w) No Undisclosed Relationships*.* No relationship, direct or indirect, exists between or among the Company or any of its subsidiaries, on the one hand, and the directors, officers, stockholders, customers or suppliers of the Company or any of its subsidiaries, on the other, that is required by the Securities Act to be described in the General Disclosure Package and the Prospectus and that is not so described in such documents.
19
(x) Independent Registered Public Accounting Firm. Deloitte & Touche LLP, the accounting firm that certified the financial statements and supporting schedules included in or incorporated by reference in the General Disclosure Package and the Prospectus, is an independent registered public accounting firm as required by the Securities Act and the Securities Act Regulations.
(y) Financial Statements. The financial statements included in the General Disclosure Package and the Prospectus, together with the related schedules and notes, present fairly the financial position of the Company and its consolidated subsidiaries at the dates indicated and the statement of operations, stockholders’ equity and cash flows of the Company and its consolidated subsidiaries for the periods specified; said financial statements have been prepared in conformity with generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved. The supporting schedules, if any, present fairly in accordance with GAAP the information required to be stated therein. The selected financial data and the summary financial information included in the General Disclosure Package and the Prospectus present fairly the information shown therein and have been compiled on a basis consistent with that of the audited financial statements included in the Registration Statement. All disclosures contained in the General Disclosure Package or the Prospectus regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission) comply with Regulation G under the Exchange Act and Item 10 of Regulation S-K of the Securities Act Regulations, to the extent applicable.
(z) eXtensible Business Reporting Language. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(aa) Accounting Controls and Disclosure Controls. The Company and each of its subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurances that (1) transactions are executed in accordance with management’s general or specific authorization; (2) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (3) access to assets is permitted only in accordance with management’s general or specific authorization; and (4) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as described in the General Disclosure Package and the Prospectus, since the end of the Company’s most recent audited fiscal year, there has been (I) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (II) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
20
The Company and its consolidated subsidiaries employ disclosure controls and procedures that are designed to ensure that the information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms, and is accumulated and communicated to the Company’s management, including its principal executive officer or officers and principal financial officer or officers, or persons performing similar functions, as appropriate, to allow timely decisions regarding disclosure.
(bb) Compliance with the Sarbanes-Oxley Act. There is and has been no failure on the part of the Company or any of the Company’s directors or officers, in their capacities as such, to comply in all material respects with any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith (the “Sarbanes-Oxley Act”), including Section 402 related to loans and Sections 302 and 906 related to certifications.
(cc) ERISA Compliance*.* The Company and its subsidiaries and any “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, and the regulations and published interpretations thereunder (collectively, “ERISA”)) established or maintained by the Company, its subsidiaries or their ERISA Affiliates (as defined below) are in compliance in all material respects with ERISA. “ERISA Affiliate” means, with respect to the Company or a subsidiary, any member of any group of organizations described in Sections 414(b), (c), (m) or (o) of the Internal Revenue Code, of which the Company or such subsidiary is a member. No “reportable event” (as defined under ERISA) has occurred or is reasonably expected to occur with respect to any “employee benefit plan” established or maintained by the Company, its subsidiaries or any of their ERISA Affiliates. No “employee benefit plan” established or maintained by the Company, its subsidiaries or any of their ERISA Affiliates, if such “employee benefit plan” were terminated, would have any “amount of unfunded benefit liabilities” (as defined under ERISA). Neither the Company, its subsidiaries nor any of their ERISA Affiliates has incurred or reasonably expects to incur any liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “employee benefit plan,” (ii) Sections 412, 4971 or 4975 of the Internal Revenue Code, or (iii) Section 4980B of the Internal Revenue Code with respect to the excise tax imposed thereunder. Each “employee benefit plan” established or maintained by the Company, its subsidiaries or any of their ERISA Affiliates that is intended to be qualified under Section 401(a) of the Internal Revenue Code has received a favorable determination letter from the Internal Revenue Service and nothing has occurred, whether by action or failure to act, which is reasonably likely to cause disqualification of any such employee benefit plan under Section 401(a) of the Internal Revenue Code.
21
(dd) Pending Proceedings and Examinations. The Registration Statement is not the subject of a pending proceeding or examination under Section 8(d) or 8(e) of the Securities Act, and the Company is not the subject of a pending proceeding under Section 8A of the Securities Act in connection with the offering of the Securities.
(ee) No Unlawful Payments. None of the Company, any of its subsidiaries or, to the knowledge of the Company, any director, officer, employee, agent, affiliate or other person associated with or acting on behalf of the Company or any of its subsidiaries or affiliates has (i) used any funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made or taken an act in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government or regulatory official or employee, including of any government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended, or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under the Bribery Act 2010 of the United Kingdom, or any other applicable anti-bribery or anti-corruption laws; or (iv) made, offered, agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit. The Company and its subsidiaries have instituted, maintain and enforce, and will continue to maintain and enforce, policies and procedures designed to promote and ensure compliance with all applicable anti-bribery and anti-corruption laws.
(ff) Compliance with Anti-Money Laundering Laws. The operations of the Company and its subsidiaries are and, to the knowledge of the Company have been, conducted at all times in compliance with applicable financial recordkeeping and reporting requirements, including those of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the applicable money laundering statutes of all jurisdictions where the Company or any of its subsidiaries conducts business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any arbitrator, court, governmental body, regulatory body, administrative agency or other
22
authority, body or agency having jurisdiction over the Company or any of its subsidiaries or any of their respective properties, assets or operations (each, a “GovernmentalEntity”) (collectively, the “Anti-Money Laundering Laws”). No action, suit or proceeding by or before any Governmental Entity involving the Company or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(gg) No Conflicts with Sanctions Laws. None of the Company, any of its subsidiaries or, to the knowledge of the Company, any director, officer, employee, agent, affiliate or other person associated with or acting on behalf of the Company or any of its subsidiaries or affiliates is currently the subject or the target of any sanctions administered or enforced by the U.S. government, (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) or the U.S. Department of State and including, without limitation, the designation as a “specially designated national” or “blocked person”), the United Nations Security Council (“UNSC”), the European Union, Her Majesty’s Treasury (“HMT”), or other relevant sanctions authority (collectively, “Sanctions”), nor is controlled by an individual or entity that is currently subject to Sanctions, nor is the Company or any of its subsidiaries located, organized or resident in a country or territory that is the subject or target of Sanctions, including, without limitation, Cuba, Iran, North Korea, Syria and Crimea (each, a “Sanctioned Country”); and the Company will not directly or indirectly use the proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities of or business with any person that, at the time of such funding or facilitation, is the subject or target of Sanctions, (ii) to fund or facilitate any activities of or business in any Sanctioned Country or (iii) in any other manner that will result in a violation by any person (including any person participating in the transaction, whether as underwriter, initial purchaser, advisor, investor or otherwise) of Sanctions. For the past five years, the Company and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in, and will not engage in, any dealings or transactions with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with any Sanctioned Country.
Any certificate signed by any officer of the Company or any of its subsidiaries and delivered to the Representatives or to counsel for the Underwriters shall be deemed a representation and warranty by the Company to each Underwriter as to the matters covered thereby.
23
- Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify and hold harmless each Underwriter, its affiliates (as such term is defined in Rule 501(b) of the Securities Act Regulations (each, an “Affiliate”)), selling agents, officers and directors and each person, if any, who controls any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including any information deemed to be a part thereof pursuant to Rule 430B, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of, or based upon, any untrue statement or alleged untrue statement of a material fact included (A) in any preliminary prospectus, any Issuer Free Writing Prospectus, the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) or (B) in any materials or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Securities (“Marketing Materials”), including any roadshow or investor presentations made to investors by the Company (whether in person or electronically), or the omission or alleged omission in any preliminary prospectus, any Issuer Free Writing Prospectus, the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) or in any Marketing Materials of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any Governmental Entity, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 8(d) hereof) any such settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by the Representatives), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any Governmental Entity, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above;
24
provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of, or based upon, any untrue statement or omission or alleged untrue statement or omission made in the Registration Statement (or any amendment thereto), including any information deemed to be a part thereof pursuant to Rule 430B, any preliminary prospectus, any Issuer Free Writing Prospectus, in the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with information furnished to the Company in writing by any of the Underwriters through the Representatives expressly for use herein, it being understood and agreed that the only such information furnished by any Underwriter through the Representatives consists of the information described as such in this Section (the “Underwriter Information”).
(b) Indemnification of Company, Directors and Officers. Each Underwriter severally agrees to indemnify and hold harmless the Company, its directors, each of its officers who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in Section 8(a) hereof, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), including any information deemed to be a part thereof pursuant to Rule 430B, any preliminary prospectus, any Issuer Free Writing Prospectus, in the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with the Underwriter Information. The Company hereby acknowledges that the only Underwriter Information consists of: (A) the names of such Underwriter as presented on the front and back cover of the preliminary prospectus and the Prospectus and (B) the statements set forth under the caption “Underwriting—New Issue of Debentures” in the second sentence of the paragraph thereunder starting with “We have been advised by the underwriters that they presently intend to make a market in the debentures …” and the statements set forth under the caption “Underwriting—Price Stabilization and Short Positions” in the first paragraph thereunder starting with “In connection with the offering, the underwriters may purchase and sell the debentures in the open market,” each as set forth in (x) the preliminary prospectus forming part of the General Disclosure Package and (y) the Prospectus.
25
(c) Actions Against Parties; Notification. Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. In the case of parties indemnified pursuant to Section 8(a) hereof, counsel to the indemnified parties shall be selected by the Representatives, and, in the case of parties indemnified pursuant to Section 8(b) hereof, counsel to the indemnified parties shall be selected by the Company. An indemnifying party may participate at its own expense in the defense of any such action; provided, however, that counsel to the indemnifying party shall not (except with the prior written consent of the indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any Governmental Entity, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 8 or Section 9 hereof (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) Settlement Without Consent if Failure to Reimburse. If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 8(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
- Contribution. If the indemnification provided for in Section 8 hereof is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate
26
amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and the Underwriters, on the other hand, from the offering of the Securities pursuant to this Agreement or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, on the one hand, and the Underwriters, on the other hand, in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the Underwriters, on the other hand, in connection with the offering of the Securities pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Securities pursuant to this Agreement (before deducting expenses) received by the Company, on the one hand, and the total underwriting discount received by the Underwriters, on the other hand, in each case as set forth on the cover of the Prospectus, bear to the aggregate initial public offering price of the Securities as set forth on the cover of the Prospectus.
The relative fault of the Company, on the one hand, and the Underwriters, on the other hand, shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 9 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 Section 9. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 9 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any Governmental Entity, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 9, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Securities underwritten and distributed to the public by such Underwriter were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission.
27
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 9, each person, if any, who controls an Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and each Underwriter’s Affiliates, officers, directors and selling agents shall have the same rights to contribution as such Underwriter, and each director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company. The Underwriters’ respective obligations to contribute pursuant to this Section 9 are several in proportion to the aggregate principal amount of Securities set forth opposite their respective names in Schedule A hereto and not joint.
Termination in Certain Events. This Agreement shall be subject to termination in the absolute discretion of the Representatives, by notice given to the Company, if (a) after the execution and delivery of this Agreement and prior to the Closing Time (i) trading generally shall have been suspended or materially limited on the New York Stock Exchange or on any other exchange on which the Company’s common stock is listed, (ii) a general moratorium on commercial banking activities in the State of New York shall have been declared by either Federal or New York State authorities, (iii) trading of any securities of, or guaranteed by, the Company shall have been suspended on any exchange or in any over-the-counter market, (iv) a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States or (v) there shall have occurred any material adverse change in the financial markets, material outbreak or escalation of hostilities or other national or international calamity or crisis of such magnitude and severity in its effect on the financial markets of the United States and (b) such event singly or together with any other such event makes it, in the reasonable judgment of the Representatives, impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus.
Defaulting Underwriters. If, at the Closing Time, any one or more of the Underwriters shall default in its or their obligations to take up and pay for the Securities or otherwise fail or refuse to purchase Securities which it or they have agreed to purchase hereunder on such date, and the aggregate principal amount of Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate principal amount of the Securities to be purchased on such date, the non-defaulting Underwriters may make arrangements satisfactory to the Company and the non-defaulting Underwriters for the purchase of such Securities, but if no such
28
arrangements are made, the non-defaulting Underwriters shall be obligated severally in the proportions which the aggregate principal amount of Securities set forth opposite their names in this Agreement bears to the aggregate principal amount of Securities set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as the Representatives may specify, to purchase the Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date; provided that in no event shall the aggregate principal amount of Securities which any non-defaulting Underwriter has agreed to purchase pursuant to this Agreement be increased pursuant to this paragraph by an amount in excess of one-ninth of such principal amount of Securities without the written consent of such non-defaulting Underwriter. In the case of any Securities to be purchased at the Closing Time where a default has occurred pursuant to the immediately preceding sentence, either the Representatives or the Company shall have the right to postpone the Closing Time, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and in the Prospectus or in any other documents or arrangements may be effected. If any Underwriter or Underwriters shall fail or refuse to purchase Securities and the aggregate principal amount of Securities with respect to which such default occurs is more than one-tenth of the aggregate principal amount of the Securities, and arrangements satisfactory to the Representatives and the Company for the purchase of such Securities are not made within 36 hours after such default, this Agreement will terminate without liability on the part of any non-defaulting Underwriter or of the Company. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
Reimbursement of Underwriters’ Expenses. If this Agreement shall be terminated by the Underwriters or any of them because of any failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, or if for any reason the Company shall be unable to perform its obligations under this Agreement, the Company agrees to reimburse the Underwriters or such Underwriters as have so terminated this Agreement, with respect to themselves, severally, for all out-of-pocket expenses (including the fees and disbursements of their counsel itemized in detail reasonably satisfactory to the Company) reasonably incurred by such Underwriters in connection with the Securities.
Tax Disclosure. Notwithstanding any other provision of this Agreement, immediately upon commencement of discussions with respect to the transactions contemplated hereby, the Company (and each employee, representative or other agent of the Company) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the transactions contemplated by this Agreement and all materials of any kind (including opinions or other tax analyses) that are provided to the Company relating to such tax treatment and tax structure. For purposes of the foregoing, the term “tax treatment” is the purported or claimed federal income tax treatment of the transactions contemplated hereby, and the term “tax structure” includes any fact that may be relevant to understanding the purported or claimed federal income tax treatment of the transactions contemplated hereby.
29
No Advisory or Fiduciary Relationship. The Company acknowledges and agrees that (a) the purchase and sale of the Securities pursuant to this Agreement, including the determination of the public offering price of the Securities and any related discounts and commissions, is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other hand, (b) in connection with the offering contemplated hereby and the process leading to such transaction each Underwriter is and has been acting solely as a principal and is not the agent or fiduciary of the Company or its stockholders, creditors, employees or any other party, (c) no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) and no Underwriter has any obligation to the Company with respect to the offering contemplated hereby except the obligations expressly set forth in this Agreement, (d) the Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company, and (e) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate.
Research Analyst Independence. The Company acknowledges that the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies, and that such Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and releases, to the fullest extent permitted by applicable law, any claims that the Company may have against the Underwriters with respect to any conflict of interest that may arise from the fact that the views expressed by their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company by such Underwriters’ investment banking divisions. The Company acknowledges that each of the Underwriters is a full service securities firm and as such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that may be the subject of the transactions contemplated by this Agreement.
30
Integration. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof.
Counterparts. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
Parties In Interest. This Agreement has been and is made solely for the benefit of the Underwriters and the Company, and the controlling persons, directors and officers referred to in Section 8, and their respective successors, assigns, executors and administrators. No other person shall acquire or have any right under or by virtue of this Agreement. The parties hereby agree that BofA Securities, Inc. may, without notice to the Company, assign its rights and obligations under this Agreement to any other registered broker-dealer wholly-owned by Bank of America Corporation to which all or substantially all of BofA Securities, Inc.’s capital markets and investment banking or related businesses may be transferred following the date of this Agreement
Section Headings. The Section headings in this Agreement have been inserted as a matter of convenience of reference and are not a part of this Agreement.
Recognition of the U.S. Special Resolution Regimes.
(a) In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(b) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
31
As used in this Section:
“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
32
If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters and the Company in accordance with its terms.
| Very truly yours, | |
|---|---|
| GLOBE LIFE INC. | |
| By | /s/ M. Shane Henrie |
| Name: M. Shane Henrie | |
| Title: Corp SVP & Chief Accounting Officer |
The foregoing Underwriting Agreement is hereby confirmed and accepted by the Representatives as of the date first above written.
| BOFA SECURITIES, INC. | |
|---|---|
| MORGAN STANLEY & CO. LLC | |
| WELLS FARGO SECURITIES, LLC<br>as Representatives of the Underwriters | |
| BOFA SECURITIES, INC. | |
| --- | --- |
| By: | /s/ Pat McNeely |
| Authorized Signatory | |
| MORGAN STANLEY & CO. LLC | |
| By: | /s/ Ian Drewe |
| Authorized Signatory | |
| WELLS FARGO SECURITIES, LLC | |
| By: | /s/ Carolyn Hurley |
| Authorized Signatory |
SCHEDULE A
GLOBE LIFE INC.
| Name of Underwriter | Principal<br>Amount of<br>Securities | |
|---|---|---|
| BofA Securities, Inc. | $ | 81,250,000 |
| Morgan Stanley & Co. LLC | 81,250,000 | |
| Wells Fargo Securities, LLC | 81,250,000 | |
| U.S. Bancorp Investments, Inc. | 29,250,000 | |
| Comerica Securities, Inc. | 9,750,000 | |
| KeyBanc Capital Markets Inc. | 9,750,000 | |
| PNC Capital Markets LLC | 9,750,000 | |
| Regions Securities LLC | 9,750,000 | |
| Truist Securities, Inc. | 9,750,000 | |
| Siebert Williams Shank & Co., LLC | 3,250,000 | |
| Total | $ | 325,000,000 |
A-1
SCHEDULE B
B-1
SCHEDULE C
- Free writing prospectus, dated June 9, 2021, in the form attached as Schedule B hereto.
C-1
EXHIBIT A
FORM OF OPINION OF R. BRIAN MITCHELL, ESQ.
EXECUTIVE VICE PRESIDENT, GENERAL COUNSEL
AND CHIEF RISK OFFICER FOR THE COMPANY
June 14, 2021
BofA Securities, Inc.
Morgan Stanley & Co. LLC
Wells Fargo Securities, LLC
as Representatives of the several Underwriters
named in Schedule A to the Underwriting Agreement referred to below
c/o BofA Securities, Inc.
One Bryant Park
New York, New York 10036
c/o Morgan Stanley & Co. LLC
1585 Broadway
New York, New York 10036
and
c/o Wells Fargo Securities, LLC
550 South Tryon Street, 5th Floor
Charlotte, North Carolina 28202
Ladies and Gentlemen:
I am Executive Vice President, General Counsel and Chief Risk Officer of Globe Life Inc., a Delaware corporation (the “Company”), and, as such, have served as counsel for the Company in connection with the issuance and sale to the Underwriters named in Schedule A to the Underwriting Agreement dated June 9, 2021 (the “Underwriting Agreement”), of $325,000,000 aggregate principal amount of 4.250% Junior Subordinated Debentures due 2061 (the “Securities”) of the Company to be issued pursuant to an indenture dated as of November 2, 2001 between the Company and The Bank of New York (the “Original Trustee”), as supplemented by a Fourth Supplemental Indenture to be dated as of June 14, 2021 (as supplemented, the “Indenture”) between the Company and Regions Bank (successor in interest to the Original Trustee), as trustee under the Indenture (the “Trustee”). Terms used in this opinion and not otherwise defined herein have the same meanings as in the Underwriting Agreement.
A-1
I am familiar with and have examined such documents and records as I deemed necessary to render this opinion, including the Underwriting Agreement, the Indenture and the Securities.
In my examination I have assumed but have not independently verified the genuineness of all signatures on all documents examined by me, the conformity to original documents of all documents submitted to us as certified or facsimile copies and the authenticity of all such documents.
Based on the foregoing, and subject to the qualifications hereinafter set forth, I am of the opinion that:
(i) The Company (1) has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Delaware, (2) has all requisite corporate power and authority to own, lease and operate its properties, to conduct its business as described in the General Disclosure Package and the Prospectus, to enter into and perform its obligations under, and to consummate the transactions contemplated under, the Underwriting Agreement and the Indenture, and to issue the Securities, and (3) is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(ii) Each of Liberty National Life Insurance Company, Globe Life And Accident Insurance Company, United American Insurance Company, American Income Life Insurance Company and Family Heritage Life Insurance Company of America (collectively the “Significant Subsidiaries”) (1) has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation and has all requisite corporate power and authority to own, lease and operate its properties and to conduct its business as described in the General Disclosure Package and the Prospectus and (2) is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; all of the issued shares of capital stock of each such Significant Subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly or indirectly by the Company free and clear of any liens, encumbrances, equities or claims.
A-2
(iii) Each of the Company and its Significant Subsidiaries engaged in the business of insurance are duly organized and licensed as insurance companies or insurance holding companies, as the case may be, in their respective jurisdictions of incorporation (if so required) and, in the case of the Company, each other jurisdiction where it is required to be so licensed or authorized to conduct its business, and, in the case of the Significant Subsidiaries engaged in the business of insurance, each other jurisdiction in which such Significant Subsidiary has written 5% or more of the total amount of premiums written by it during each of the last two calendar years, except for any such jurisdictions in which the failure to be so licensed or authorized would not have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(iv) The execution and delivery by the Company of, and the performance by the Company of its obligations under, the Underwriting Agreement, the Indenture and the Securities and the issuance and sale of the Securities as contemplated in the Underwriting Agreement will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Company or, to my knowledge, any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under the Underwriting Agreement, the Indenture and the Securities except such as have been obtained or may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Securities.
(v) After due inquiry, I do not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which any property of the Company or any of its subsidiaries is subject that are required to be described in the Registration Statement, the General Disclosure Package and or the Prospectus and are not so described or of any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement, the General Disclosure Package or the Prospectus or to be filed as exhibits to the Registration Statement which are not described or to be filed as required.
A-3
(vi) The statements (a) in Part I of the Annual Report on Form 10-K of the Company for the year ended December 31, 2020, under the captions “Item 1—Business—Regulation” and “Item 3—Legal Proceedings” and (b) in Part II of the Quarterly Report on Form 10-Q of the Company for the quarter ended March 31, 2021 under the caption “Item 1—Legal Proceedings,” in each case insofar as such statements constitute summaries of legal matters, documents or proceedings referred to therein, fairly summarize the matters referred to therein in all material respects.
(vii) Each document incorporated by reference in the Registration Statement, any preliminary prospectus and the Prospectus (other than the financial statements, notes, and schedules and other financial data included or incorporated by reference in such documents, as to which I express no opinion) complied as to form when filed with the Securities and Exchange Commission in all material respects with the Securities Exchange Act of 1934, as amended, and the rules and the regulations of the Securities and Exchange Commission thereunder.
I am licensed to practice law only in the State of Oklahoma, and, accordingly, this opinion is limited in all respects to the laws of the State of Oklahoma, the General Corporation Law of the State of Delaware and the United States of America.
This opinion is delivered pursuant to Section 5(b) of the Underwriting Agreement at the request of the Company and is intended solely for use by you and the other several Underwriters. As such, it may not be relied upon by any other person or for any other purpose other than for the legal conclusions expressed herein.
| Very truly yours, |
|---|
| R. Brian Mitchell, Esq. |
A-4
EXHIBIT B
FORM OF OPINION OF MCAFEE & TAFT
A PROFESSIONAL CORPORATION
SPECIAL COUNSEL FOR THE COMPANY
June 14, 2021
BofA Securities, Inc.
Morgan Stanley & Co. LLC
Wells Fargo Securities, LLC
as Representatives of the several Underwriters
named in Schedule A to the Underwriting Agreement referred to below
c/o BofA Securities, Inc.
One Bryant Park
New York, New York 10036
c/o Morgan Stanley & Co. LLC
1585 Broadway
New York, New York 10036
and
c/o Wells Fargo Securities, LLC
550 South Tryon Street, 5th Floor
Charlotte, North Carolina 28202
Ladies and Gentlemen:
We have acted as special counsel for Globe Life Inc., a Delaware corporation (the “Company”), in connection with the issuance and sale by the Company to the Underwriters named in Schedule A to the Underwriting Agreement, dated June 9, 2021 (the “Underwriting Agreement”), of $325,000,000 aggregate principal amount of 4.250% Junior Subordinated Debentures due 2061 (the “Securities”) of the Company to be issued pursuant to an indenture dated as of November 2, 2001 between the Company and The Bank of New York (the “Original Trustee”), as supplemented by a Fourth Supplemental Indenture to be dated as of June 14, 2021 (as supplemented, the “Indenture”) between the Company and Regions Bank (successor in interest to the Original Trustee), as trustee under the Indenture (the “Trustee”). Terms used in this opinion and not otherwise defined herein have the same meanings as in the Underwriting Agreement.
B-1
We have participated in the preparation of the registration statement of the Company on Form S-3 (File No. 333-256848) (other than the documents incorporated by reference in the prospectus included therein (the “Incorporated Documents”)) filed with the Securities and Exchange Commission (the “Commission”) pursuant to the provisions of the Securities Act of 1933, as amended (the “Securities Act”), in connection with the offering of the Securities. Although we did not participate in the preparation of the Incorporated Documents, we have reviewed such documents. Such registration statement, as amended to the date of the Underwriting Agreement, including the Incorporated Documents and the information deemed to be part thereof at the time of effectiveness pursuant to Rule 430B under the Securities Act, are hereinafter referred to as the “Registration Statement,” and the related prospectus dated June 7, 2021 is hereinafter referred to as the “BaseProspectus.” The preliminary prospectus supplement of the Company dated June 9, 2021 is hereinafter referred to as the “Preliminary Prospectus Supplement,” and the final prospectus supplement of the Company dated June 9, 2021 specifically relating to the Securities is hereinafter referred to as the “Prospectus Supplement.” The Base Prospectus, as supplemented by the Prospectus Supplement, in the form first used to confirm sales of the Securities (or in the form first made available by the Company to the Underwriters to meet requests of purchasers of the Securities under Rule 173 under the Securities Act), is hereinafter referred to as the “Prospectus”. The term “General Disclosure Package” means the Base Prospectus and the Preliminary Prospectus Supplement, together with the Final Term Sheet set forth in Schedule B to the Underwriting Agreement. As used herein, the terms “Registration Statement,” “Base Prospectus,” “Prospectus,” “Preliminary Prospectus Supplement” and “General Disclosure Package” shall include the documents, if any, incorporated by reference therein. The term “supplement,” “amendment” and “amend” as used herein with respect to the Registration Statement, the Base Prospectus, the Prospectus, the Preliminary Prospectus Supplement or any Permitted Free Writing Prospectus shall include all documents subsequently filed by the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are deemed to be incorporated by reference therein.
The Registration Statement has become effective under the Securities Act; the Preliminary Prospectus Supplement and the Prospectus have been filed with the Commission pursuant to Rule 424(b) within the time period required by Rule 424(b) (without reference to Rule 424(b)(8)); the Final Term Sheet has been filed with the Commission in the manner and within the time period required by Rule
B-2
433(d); and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the best of our knowledge, threatened by the Commission. In addition, the Indenture has been qualified under the Trust Indenture Act of 1939, as amended, on June 7, 2021.
As special counsel, we have examined the Underwriting Agreement, the Indenture and the form of the Securities (collectively, the “Transaction Documents”); originals or copies of certain corporate documents of the Company; certificates and statements of public officials, corporate agents, officers of the Company and other persons; and such other documents as we have deemed necessary as a basis for our opinions set forth below. Also, we have relied upon such certificates and statements of public officials, corporate agents, officers of the Company, and other persons with respect to the accuracy of material factual matters that were not independently established.
We have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals and the conformity with the original documents of all documents submitted to us as certified or photostatic copies or by facsimile or other means of electronic transmission or which we obtained from the Commission’s Electronic Data Gathering, Analysis and Retrieval System. With respect to any instrument or agreement executed or to be executed by any party other than the Company, we have assumed, to the extent relevant to the opinions set forth herein, that (i) such party (if not a natural person) has been duly organized and is validly existing and in good standing under the laws of its jurisdiction of organization and (ii) such party has full right, power and authority to execute, deliver and perform its obligations under each instrument or agreement to which it is a party and each such instrument or agreement has been duly authorized (if applicable), executed and delivered by, and, with respect to any party other than the Company, is a valid, binding and enforceable agreement or obligation, as the case may be, of such party.
Based on the foregoing, and subject to the qualifications hereinafter set forth, we are of the opinion that:
(i) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(ii) The Indenture has been duly qualified under the Trust Indenture Act and has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and
B-3
equitable principles of general applicability, provided that we express no opinion as to the (x) enforceability of any waiver of rights under any usury or stay law and (y) applicability (and if applicable, the effect) of Section 548 of the United States Bankruptcy Code or any comparable provision of state law to the questions addressed above or on the conclusions expressed with respect thereto.
(iii) The Securities have been duly authorized for issuance by the Company and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to the Underwriting Agreement, will be valid and binding obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, and will be entitled to the benefits of the Indenture pursuant to which such Securities are to be issued, provided that we express no opinion as to the (x) enforceability of any waiver of rights under any usury or stay law and (y) applicability (and if applicable, the effect) of Section 548 of the United States Bankruptcy Code or any comparable provision of state law to the questions addressed above or on the conclusions expressed with respect thereto.
(iv) The execution and delivery by the Company of, and the performance by the Company of its obligations under, the Underwriting Agreement, the Indenture and the Securities will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Company.
(v) To our knowledge, no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required under Applicable Laws (as defined below) for the performance by the Company of its obligations under the Underwriting Agreement, the Indenture and the Securities. As used herein, the term “Applicable Laws” means the laws of the State of Oklahoma, the General Corporation Law of the State of Delaware and the federal laws of the United States of America which, in our experience are normally applicable to transactions of the type contemplated by the Transaction Documents.
(vi) The Company is not, and after giving effect to the issuance of the Securities and assuming the application of the proceeds thereof as described in the General Disclosure Package or the Prospectus, will not be, required to register as an “investment company” under the Investment Company Act of 1940, as amended.
B-4
(vii) The statements (a) in the Preliminary Prospectus Supplement and the Prospectus under the captions “Description of Debentures,” “United States Federal Income Tax Consequences” and “Description of Securities We May Offer—Description of Debt Securities” and (b) in the Registration Statement in Item 15, in each case insofar as such statements constitute summaries of legal matters, documents or proceedings referred to therein, fairly summarize the matters referred to therein in all material respects.
We have not ourselves checked the accuracy, completeness or fairness of, or otherwise verified, the information furnished with respect to other matters in the Registration Statement, the General Disclosure Package or the Prospectus. We have generally reviewed and discussed with your representatives and with certain officers and employees of, and counsel and independent registered public accounting firm for, the Company the information furnished, whether or not subject to our check and verification. On the basis of such consideration, review and discussion, but without independent check or verification, except as stated, no facts have come to our attention that cause us to believe that (i) the Registration Statement and the Prospectus do not comply as to form in all material respects with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder, (ii) the Registration Statement, at the time the Registration Statement became effective and at the Applicable Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the General Disclosure Package, at the Applicable Time, contained any 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, not misleading or (iv) the Prospectus, as of its date and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except in each case we express no belief and make no statement with respect to the financial statements and financial schedules and other financial data included or incorporated by reference therein or omitted therefrom or that part of the Registration Statement that constitutes the Statements of Eligibility and Qualification of the trustees referred to in the Registration Statement. In expressing the foregoing opinion and belief, we express no opinion or belief as to the conveyance of the General Disclosure Package or the information contained therein to investors.
Our role as special counsel to the Company has been limited to matters relating to the issuance and sale of the Securities, including the preparation of the Registration Statement (other than the Incorporated Documents), the General Disclosure Package and Prospectus and the various agreements and documents specifically referred to herein. Accordingly, our opinion is limited to matters specifically set forth herein, and we do not express any opinion concerning the purchase of Securities by the ultimate purchasers thereof.
B-5
Any opinion or statement herein which is expressed to be “to our knowledge” or is otherwise qualified by words of like import means that the lawyers currently practicing law with our law firm who have devoted substantive attention to matters for the Company have no current conscious awareness of any facts or information contrary to such opinion or statement. Except to the extent expressly set forth in this opinion, we have not undertaken any independent investigation to determine the existence or absence of any fact, and no inference as to our knowledge of the existence or absence of any fact should be drawn from our representation of the Company the rendering of this opinion.
We are members of the Bar of the State of Oklahoma, and this opinion is limited in all respects to the laws of the State of Oklahoma, the General Corporation Law of the State of Delaware and the United States of America. As to all matters governed by the laws of the State of New York with respect to our opinions in paragraphs (ii) and (iii), we are relying on the opinion dated today of your counsel, Davis Polk & Wardwell LLP. This opinion is based on the law in effect and the facts and circumstances existing on the date of this opinion. We assume no obligation to update or supplement this opinion to reflect any facts or circumstances which may hereafter come to our attention with respect to the opinions and statements expressed above, including any changes in applicable law which may hereafter occur.
This opinion is being delivered to you at the request of the Company in connection with the Underwriting Agreement and the transactions contemplated by the Underwriting Agreement, and may not be relied on by any other person or for any other purpose without our prior written consent.
| Very truly yours, |
|---|
B-6
EX-4.2
Exhibit 4.2
FOURTH SUPPLEMENTAL INDENTURE
DATED AS OF JUNE 14, 2021
BETWEEN
GLOBE LIFEINC.,
AS ISSUER
AND
REGIONS BANK,
AS TRUSTEE
TABLE OF CONTENTS
PAGE
| ARTICLE 1 | ||
|---|---|---|
| DEFINITIONS | 1 | |
| Section 1.01. | Definitions | 1 |
| ARTICLE 2 | ||
| GENERAL TERMS AND CONDITIONS OF THE DEBENTURES | 5 | |
| Section 2.01. | Designation, Principal Amount and Authorized Denominations | 5 |
| Section 2.02. | Repayment | 6 |
| Section 2.03. | Form | 6 |
| Section 2.04. | Interest | 7 |
| Section 2.05. | Interest Deferral | 8 |
| Section 2.06. | Events of Default | 8 |
| Section 2.07. | Security Registrar; Paying Agent | 10 |
| Section 2.08. | Subordination | 10 |
| Section 2.09. | Satisfaction, Discharge and Defeasance | 11 |
| ARTICLE 3 | ||
| COVENANTS | 11 | |
| Section 3.01. | Dividend and Other Payment Stoppages | 11 |
| ARTICLE 4 | ||
| REDEMPTION OF THE DEBENTURES | 12 | |
| Section 4.01. | Redemption | 12 |
| Section 4.02. | Redemption Price | 13 |
| ARTICLE 5 | ||
| ORIGINAL ISSUE OF DEBENTURES | 13 | |
| Section 5.01. | Original Issue of Debentures | 13 |
| Section 5.02. | Calculation of Original Issue Discount | 13 |
| ARTICLE 6 | ||
| MISCELLANEOUS | 14 | |
| Section 6.01. | Effectiveness | 14 |
| Section 6.02. | Effect of Recitals | 14 |
| Section 6.03. | Ratification of Base Indenture; Conflicts | 14 |
| Section 6.04. | Debentures Unaffected by Officer’s Certificates | 14 |
| Section 6.05. | Tax Treatment | 14 |
| Section 6.06. | Governing Law | 14 |
| Section 6.07. | Severability | 15 |
| Section 6.08. | Counterparts | 15 |
| Section 6.09. | Waiver of Jury Trial | 15 |
| Section 6.10. | Force Majeure | 15 |
| Section 6.11. | Trustee, Paying Agent, and Security Registrar Liability | 15 |
| Section 6.12. | Submission to Jurisdiction | 15 |
i
| Section 6.13. | Electronic Communications | 16 |
|---|---|---|
| Section 6.14. | FATCA | 16 |
| Section 6.15. | Notices | 16 |
| Exhibit A – Specimen Debenture | A-1 |
ii
FOURTH SUPPLEMENTAL INDENTURE, dated as of June 14, 2021 (this “Supplemental Indenture”), between Globe Life, a Delaware corporation, as issuer (the “Company”), and Regions Bank (as successor in interest to The Bank of New York and The Bank of New York Mellon Trust Company, N.A. ), as trustee (the “Trustee”), supplementing the Junior Subordinated Indenture, dated as of November 2, 2001 (the “Base Indenture,” and together with this Supplemental Indenture, the “Indenture”), each between the Company and the Trustee.
RECITALS
WHEREAS, the Company executed and delivered the Base Indenture to the Trustee to provide for the future issuance of the Company’s unsecured junior subordinated debentures, notes or other evidence of indebtedness (the “Securities”), to be issued from time to time in one or more series as might be determined by the Company under the Base Indenture;
WHEREAS, Section 8.1 of the Base Indenture provides that the Company and the Trustee may, without the consent of any Holders, enter into a supplemental indenture to establish the forms or terms of the Securities of any series as provided in Sections 2.1 and 2.3 thereof;
WHEREAS, pursuant to Sections 2.1 and 2.3 of the Base Indenture and this Supplemental Indenture, the Company desires to provide for the establishment of a new series of its Securities to be known as its 4.250% Junior Subordinated Debentures due 2061 (the “Debentures”), with the form and terms thereof as hereinafter set forth; and
WHEREAS, the Company has requested that the Trustee execute and deliver this Supplemental Indenture, and all requirements necessary to make this Supplemental Indenture a valid instrument in accordance with its terms, and to make the Debentures, when executed by the Company and authenticated and delivered by the Trustee, the valid obligations of the Company, have been done and performed, and the execution and delivery of this Supplemental Indenture have been duly authorized in all respects.
NOW, THEREFORE, in consideration of the premises and the purchase and acceptance of the Debentures by the Holders thereof, and for the purpose of setting forth, as provided in the Indenture, the form and substance of the Debentures and the terms, provisions and conditions thereof, the Company covenants and agrees with the Trustee as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions.
For all purposes of this Supplemental Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(a) a term not defined herein that is defined in the Base Indenture has the same meaning when used in this Supplemental Indenture;
(b) the definition of any term in this Supplemental Indenture that is also defined in the Base Indenture shall supersede the definition of such term in the Base Indenture;
(c) a term defined anywhere in this Supplemental Indenture has the same meaning throughout;
(d) the singular includes the plural and vice versa;
(e) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Supplemental Indenture as a whole and not to any particular Article, Section or other subdivision, and any reference to an Article, Section or other subdivision refers to an Article, Section or other subdivision of this Supplemental Indenture;
(f) headings are for convenience of reference only and do not affect interpretation; and
(g) the following terms have the meanings given to them in this Section 1.1(g):
“Bankruptcy Law” means Title 11, U.S. Code, or any similar federal or state bankruptcy, insolvency, reorganization or other law for the relief of debtors.
“Base Indenture” has the meaning specified in the introduction to this Supplemental Indenture.
“Business Day” means any day which is not a Saturday, a Sunday, a legal holiday or a day on which banking institutions or trust companies located in New York City are authorized or obligated by law to close.
“Common Stock” means shares of common stock of the Company, including treasury shares and shares sold pursuant to the Company’s dividend reinvestment plans and employee benefit plans.
“Company” has the meaning specified in the introduction to this Supplemental Indenture.
“Compounded Interest” means accrued and unpaid interest on the Debentures, together with interest thereon, to the extent permitted by applicable law, compounded quarterly at the Coupon Rate.
“Coupon Rate” has the meaning specified in Section 2.04(a) hereof.
“Custodian” means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
“Debentures” has the meaning specified in the Recitals of this Supplemental Indenture.
“Deferral Period” means the period commencing on an Interest Payment Date with respect to which the Company elects or is deemed to elect to defer interest pursuant to Section 2.05 and ending on the earlier of (i) the fifth anniversary of that Interest Payment Date and (ii) the next Interest Payment Date on which the Company has paid all deferred and unpaid amounts (including Compounded Interest) and all other accrued interest on the Debentures.
2
“Depositary”, with respect to the Debentures, means The Depository Trust Company or any successor clearing agency.
“Event of Default” has the meaning specified in Section 2.06 hereof.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, including the rules and regulations of the Securities and Exchange Commission promulgated thereunder.
“given,” with respect to any notice to be given to a Holder pursuant to this Supplemental Indenture, shall mean notice (x) given to the Depositary (or its designee) pursuant to the standing instructions from the Depositary or its designee, including by electronic mail in accordance with accepted practices or procedures at the Depositary (in the case of a Global Security) or (y) mailed to such Holder by first class mail, postage prepaid, at its address as it appears on the Security Register, in each case in accordance with Section 6.15 of this Supplemental Indenture. Notice so “given” shall be deemed to include any notice to be “mailed” or “delivered,” as applicable, under this Indenture.
“Global Security” means a Security in the form prescribed in Section 2.03 hereof and Exhibit A hereto evidencing all or part of the Debentures registered in the name of the Depositary or its nominee for such series.
“Indenture” has the meaning specified in the Recitals of this Supplemental Indenture.
“Interest Payment Date” means each March 15, June 15, September 15 and December 15, commencing September 15, 2021; provided that, if any such day is not a Business Day, then the Interest Payment Date shall be the immediately succeeding Business Day.
“Interest Payment Period” means the quarterly period from and including an Interest Payment Date to but not including the next succeeding Interest Payment Date, except for the first Interest Payment Period which shall be the period from and including the date of initial issuance of the Debentures (subject to Section 2.01(b) hereof) to but excluding September 15, 2021.
“Maturity Date” has the meaning specified in Section 2.02 hereof.
“Parity Securities” shall have the meaning specified in Section 3.01(b) hereof.
“Paying Agent” means any Person authorized by the Company to pay the principal of or interest and any other payments on the Debentures on behalf of the Company.
“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 2.9 of the Base Indenture in exchange for or in lieu of a mutilated, defaced, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, defaced, destroyed, lost or stolen Security.
3
“Rating Agency Event” means that any nationally recognized statistical rating organization within the meaning of Section 3(a)(62) under the Exchange Act, that then publishes a rating for the Company (a “rating agency”) amends, clarifies or changes the criteria it uses to assign equity credit to securities such as the Debentures, which amendment, clarification or change results in (a) the shortening of the length of time the Debentures are assigned a particular level of equity credit by that rating agency as compared to the length of time they would have been assigned that level of equity credit by that rating agency or its predecessor on the date of initial issuance of the Debentures; or (b) the lowering of the equity credit (including up to a lesser amount) assigned to the Debentures by that rating agency compared to the equity credit assigned by that rating agency or its predecessor on the initial issuance of the Debentures.
“Redemption Date,” when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Supplemental Indenture.
“Regular Record Date” means, with respect to an Interest Payment Date, the March 1, June 1, September 1 and December 1, as the case may be, next preceding such Interest Payment Date, in each case whether or not a Business Day.
“Regulatory Capital Event” means that the Company becomes subject to capital adequacy supervision by a capital regulator and the capital adequacy guidelines that apply to the Company as a result of being so subject set forth criteria pursuant to which the full principal amount of the Debentures would not qualify as capital under such capital adequacy guidelines, as the Company may determine at any time, in good faith.
“Securities” has the meaning specified in the Recitals of this Supplemental Indenture.
“Security Registrar” means, with respect to the Debentures, Regions Bank, or any other firm appointed by the Company, acting as security registrar for the Debentures.
“Security Registrar Office” means the office of the applicable Security Registrar at which at any particular time its corporate agency business shall principally be administered, which office at the date hereof in the case of Regions Bank, in its capacity as Security Registrar under the Indenture, is located at 3773 Richmond Avenue, Suite 1100 Houston, TX 77046, ATTN: Corporate Trust.
“Subsidiary” means, at any time, any Person the shares of stock or other ownership interests of which ordinarily have voting power to elect a majority of the board of directors or other managers of such Person, are at the time owned or the management and policies of which are otherwise at the time controlled, directly or indirectly through one or more intermediaries (including other Subsidiaries) or both, by another Person.
“Supplemental Indenture” has the meaning specified in the introduction to this Supplemental Indenture.
“Tax Event” means the receipt by the Company of an opinion of counsel, rendered by a law firm of nationally recognized standing that is experienced in such tax matters, stating that, as a result of any: (i) amendment to, or change in, (including any promulgation, enactment, execution or modification of) the laws (or any regulations under those laws) of the United States
4
or any political subdivision thereof or therein affecting taxation, (ii) official administrative pronouncement (including a revenue ruling, private letter ruling, technical advice memorandum or similar pronouncement) or judicial decision or administrative action or other official pronouncement interpreting or applying the laws or regulations enumerated in clause (i) above, by any court, government agency or regulatory authority, or (iii) threatened challenge asserted in connection with an audit of the Company or any of its Subsidiaries, or a threatened challenge asserted in writing against any taxpayer that has raised capital through the issuance of securities that are substantially similar to the Debentures (collectively, a “Tax Change”), which Tax Change is enacted or effective or which pronouncement or decision is announced or which challenge is asserted against the Company or becomes publicly known on or after the date hereof, there is more than an insubstantial increase in the risk that interest accruable or payable by the Company on the Debentures is not, or will not be, deductible by the Company, in whole or in part, for United States federal income tax purposes.
“Total Assets” means, at any date, the total assets appearing on the most recently prepared consolidated balance sheet of the Company and its consolidated Subsidiaries as at the end of a fiscal quarter of the Company, prepared in accordance with generally accepted accounting principles.
ARTICLE 2
GENERAL TERMSAND CONDITIONS OF THE DEBENTURES
Section 2.01. Designation, Principal Amount and Authorized Denominations.
(a) Designation. Pursuant to Sections 2.1 and 2.3 of the Base Indenture, there is hereby established a series of Securities of the Company designated as the 4.250% Junior Subordinated Debentures due 2061, the principal amount of which to be issued shall be in accordance with Section 2.01(b) hereof and as set forth in any Issuer Order for the authentication and delivery of Debentures pursuant to Section 2.4 of the Base Indenture, and the form and terms of which shall be as set forth hereinafter.
(b) Principal Amount. Debentures in an initial aggregate principal amount of $325,000,000 shall, upon execution of this Supplemental Indenture, be executed by the Company and delivered to the Trustee or an Authenticating Agent for authentication, and the Trustee or an Authenticating Agent shall thereupon authenticate and deliver said Debentures in accordance with Section 2.4 of the Base Indenture. Additional Debentures may be issued from time to time pursuant to this Supplemental Indenture on the same terms and conditions as the Debentures issued under this Supplemental Indenture in all respects, except for any difference in the issue date, issue price and, if applicable, the first payment of interest thereon and the initial interest accrual date. Additional Debentures issued pursuant to this Supplemental Indenture will be consolidated with, and will form a single series with, the previously outstanding Debentures issued pursuant to this Supplemental Indenture so long as any such additional Debentures have the same tenor and terms (including, without limitation, rights to receive accrued and unpaid interest as the previously outstanding Debentures); provided that if such additional Debentures are not fungible with the outstanding Debentures for U.S. federal income tax purposes, then they will be issued under one or more separate CUSIP numbers.
5
(c) Authorized Denominations. The denominations in which Debentures shall be issuable is a minimum of $25 principal amount and integral multiples of $25 thereafter.
Section 2.02. Repayment.
The principal of, and all accrued and unpaid interest on, all Outstanding Debentures shall be due and payable on June 15, 2061 or, if such date is not a Business Day, the following Business Day (the “Maturity Date”).
Section 2.03. Form.
The Debentures shall be substantially in the form of Exhibit A attached hereto and shall be issued in fully registered definitive form without interest coupons. Principal of and interest on the Debentures issued in definitive form will be payable, the transfer of such Debentures will be registrable and such Debentures will be exchangeable for Debentures bearing identical terms and provisions and notices and demands to or upon the Company in respect of the Debentures and the Indenture may be served at the Corporate Trust Office of the Trustee, and the Company appoints the Trustee as its agent for the foregoing purposes, provided that payment of interest may be made at the option of the Company by check mailed to the Holders at such address as shall appear in the Security Register or by wire transfer in immediately available funds to the bank account number of the Holders specified in writing by the Holders not less than 10 days before the relevant Interest Payment Date and entered in the Security Register by the Security Registrar. The Debentures may be presented for registration of transfer or exchange at the Security Registrar Office. The Debentures are initially solely issuable as Global Securities. The Depository Trust Company is hereby designated as Depositary. Registered Debentures shall be physically transferred to all beneficial owners in definitive form in exchange for their beneficial interests in a Global Security if the Depositary with respect to such Global Securities notifies the Company that it is unwilling or unable to continue as Depositary for such Global Security or the Depositary ceases to be a clearing agency registered under the Exchange Act, as the case may be, and a successor Depositary is not appointed by the Company within 90 days of such notice.
In addition, beneficial interests in the Global Securities may be exchanged for definitive certificated Debentures upon request by or on behalf of the Depositary in accordance with customary procedures following the request of a beneficial owner seeking to exercise or enforce its rights under such Debentures in connection with an Event of Default. If the Company determines at any time that the Debentures shall no longer be represented by a Global Security, the Company shall inform the Depositary of such determination which will, in turn, notify participants of their right to withdraw their beneficial interest from the Global Security. If such participants then elect to withdraw their beneficial interests, the Company shall issue certificates in definitive form in exchange for such beneficial interests in the Global Security. Any Global Security, or portion thereof, that is exchangeable pursuant to this Section 2.03 shall be exchangeable for Debenture certificates registered in the names directed by the Depositary.
6
Section 2.04. Interest.
(a) From and including the original issue date up to but excluding the Maturity Date or earlier Redemption Date, as applicable, the Debentures will bear interest, accruing from the date of initial issuance (except as further described in the following sentence), at the per annum rate of 4.250% (the “Coupon Rate”), payable quarterly in arrears on each Interest Payment Date, commencing on September 15, 2021.
(b) Interest payments will include accrued interest from and including the last date in respect of which interest has been paid or duly provided for to, but excluding, the next succeeding Interest Payment Date, the Maturity Date or the Redemption Date, as the case may be. The amount of interest payable for any full Interest Payment Period will be computed on the basis of a 360-day year of twelve thirty-day months, and the amount of interest payable for any period shorter than a full Interest Payment Period for which interest is computed will be computed on the basis of thirty-day months and, for periods of less than a thirty-day month, the actual number of days elapsed per thirty-day month.
(c) Otherwise than in connection with the maturity or early redemption of the Debentures or the payment in whole or in part of deferred or overdue interest on the Debentures, interest on the Debentures may be paid only on an Interest Payment Date. Notwithstanding the preceding sentence, in the event that any Interest Payment Date is not a Business Day, then payment of interest payable on such Interest Payment Date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of such delay).
(d) To the extent permitted by applicable law, interest not paid when due hereunder, including, without limitation, all deferred interest, will accrue and compound quarterly at the Coupon Rate on each Interest Payment Date until paid. References to the term “interest” in this Indenture shall include such Compounded Interest.
(e) For so long as the Debentures are represented by one or more Global Securities, the interest installment so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Base Indenture, be paid to the Person in whose name the Debentures (or one or more Predecessor Securities) are registered at the close of business on the Regular Record Date next preceding the Interest Payment Date, which shall be the record date for such Interest Payment Date; provided that, in the event the Debentures at any time are not represented solely by one or more Global Securities, the Company may select a different record date for such Interest Payment Date, which shall be at least one Business Day before an Interest Payment Date. Any such interest installment not punctually paid or duly provided for shall forthwith cease to be payable to the registered Holders of Debentures on such record date, and may be paid to the Person in whose name the Debentures (or one or more Predecessor Securities) is registered at the close of business on a special record date to be fixed by the Trustee for the payment of such defaulted interest after the Company has deposited with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such defaulted interest, notice whereof shall be given to the registered Holders of Debentures not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Debentures may be listed, and upon such notice as may be required by such exchange.
7
Section 2.05. Interest Deferral.
(a) Option to Defer Interest Payments.
(i) So long as no Event of Default with respect to the Debentures has occurred and is continuing, the Company shall have the right on one or more occasions, to defer the payment of interest on the Debentures for one or more Interest Payment Periods up to five consecutive years, provided that no Deferral Period shall extend beyond the Maturity Date, the earlier accelerated maturity date of the Debentures or other redemption in full of the Debentures. If the Company shall fail to pay interest on the Debentures on any Interest Payment Date, the Company shall be deemed to elect to defer payment of such interest on such Interest Payment Date, unless the Company shall pay such interest in full within five Business Days after any such Interest Payment Date. If the Company shall have paid all deferred interest on the Debentures, the Company shall have the right to elect to begin a new Deferral Period pursuant to this Section 2.05.
(ii) During a Deferral Period, interest will continue to accrue on the Debentures at the Coupon Rate, compounded quarterly, as of each Interest Payment Date to the extent permitted by applicable law.
(iii) The Company shall pay all deferred interest in accordance with the provisions of Section 2.7 of the Base Indenture applicable to Defaulted Interest.
(b) Payment of Deferred Interest. On the Maturity Date or if the principal amount of the Debentures shall have been accelerated and such acceleration has not been rescinded, the Company shall pay all accrued and unpaid interest, including deferred interest, from any available funds. On any Interest Payment Date the Company may pay any accrued and unpaid interest from any available funds.
(c) Notice of Deferral. The Company shall provide written notice to the Trustee and the Holders of the Debentures of its election to commence or continue any Deferral Period at least one Business Day and not more than sixty Business Days prior to the applicable Interest Payment Date. Notice of the Company’s election of a Deferral Period shall be given to the Trustee and each Holder of Debentures at such Holder’s address appearing in the Security Register by first-class mail, postage prepaid. Notwithstanding the foregoing, the failure of the Company to provide notice in accordance with this Section 2.05(c) of its election to commence or continue any Deferral Period, including any deemed election as provided in Section 2.05(a)(i), shall not affect the validity of such deferral hereunder.
Section 2.06. Events of Default.
Solely for purposes of the Debentures, the first paragraph of Section 5.1, Section 5.1(a)-(i) and the following three paragraphs of the Base Indenture shall be deleted and replaced by the following:
“Event of Default”, wherever used herein with respect to the Debentures, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of interest in full, including Compounded Interest, on any Debenture for a period of 30 days, other than during a Deferral Period, or on the Maturity Date;
8
(b) default in the payment of principal of or premium, if any, on any Debenture on the Maturity Date or upon redemption;
(c) failure by the Company to comply in any material respect with any of its agreements or covenants in, or any of the provisions of, the Indenture with respect to the Debentures (other than an agreement, covenant or provision for which non-compliance is elsewhere in this Section specifically dealt with), and such non-compliance continues for a period of 60 days after there has been given, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Debentures, a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder;
(d) a default under any mortgage, agreement, indenture or instrument under which there may be issued, or by which there may be secured, guaranteed or evidenced any Debt of the Company (including this Indenture) whether such Debt now exists or shall hereafter be created, in an aggregate principal amount then outstanding of $10,000,000 or more, which default (i) shall constitute a failure to pay any portion of the principal of such Debt when due and payable after the expiration of any applicable grace period with respect thereto or (ii) shall result in such Debt becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such acceleration shall not be rescinded or annulled, or such Debt shall not be paid in full within a period of 30 days after there has been given, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount of the Debentures a written notice specifying such event of default and requiring the Company to cause such acceleration to be rescinded or annulled or to pay in full such Debt and stating that such notice is a “Notice of Default” hereunder; (it being understood however, that the Trustee shall not be deemed to have knowledge of such default under such agreement or instrument unless either (i) a Responsible Officer of the Trustee shall have actual knowledge of such default or (ii) a Responsible Officer of the Trustee shall have received written notice thereof from the Company or from any Holder); provided, however, that if such default under such agreement or instrument is remedied or cured by the Company or waived by the holders of such indebtedness, then the Event of Default hereunder by reason thereof shall be deemed likewise to have been thereupon remedied, cured or waived without further action upon the part of either the Trustee or any of such Holders; provided, further, that the foregoing shall not apply to any secured Debt under which the obligee has recourse (exclusive of recourse for ancillary matters such as environmental indemnities, misapplication of funds, costs of enforcement and the like) only to the collateral pledged for repayment so long as the fair market value of such collateral does not exceed 2% of Total Assets at the time of the default;
(e) the Company, pursuant to or within the meaning of any Bankruptcy Law, (i) commences a voluntary case or proceeding, (ii) consents to the entry of an order for relief against it in an involuntary case or proceeding, (iii) consents to the appointment of a Custodian of it or for all or substantially all of its property, (iv) makes a general assignment for the benefit of its creditors (v) makes an admission in writing of its inability to pay its debts generally as they become due or (vi) takes corporate action in furtherance of any such action; or
9
(f) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (i) is for relief against the Company, in an involuntary case, (ii) adjudges the Company as bankrupt or insolvent, or approves as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company, or appoints a Custodian of the Company, or for all or substantially all of its property, or (iii) orders the liquidation of the Company, and the order or decree remains unstayed and in effect for 60 days.
The Trustee shall have no right or obligation under the Indenture or otherwise to exercise any remedies on behalf of the Holders of the Debentures in connection with any failure by the Company to comply with any covenant or warranty of the Company contained in the Base Indenture (other than any covenant referred to in Section 5.1(a) or (b)), unless the Trustee is directed to exercise such remedies pursuant to and subject to the provisions of Section 5.9 of the Base Indenture.
If an Event of Default has occurred under Section 5.1(a), 5.1(b), 5.1(c) or 5.1(d), then, and in each and every such case, unless the Principal of all of the Securities shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of all of the Debentures then Outstanding hereunder (treated as one class) by notice in writing to the Company (and to the Trustee if given by Holders), may declare the entire principal of all of the Debentures then Outstanding, and the interest accrued thereon, if any, to be due and payable immediately, and upon such declaration, the same shall become immediately due and payable.
If an Event of Default has occurred under Section 5.1(e) or Section 5.1(f), the principal of and accrued but unpaid interest on the Debentures shall automatically, and without any declaration or other action on the part of the Trustee or any Holder of the Debentures, become immediately due and payable. In connection with any such exercise of remedies, the Trustee shall be entitled to the same immunities and protections and remedial rights (other than acceleration) as if such failure to comply were an Event of Default. The Trustee shall not be charged with knowledge or notice of any such failure to comply unless and until it shall have received the foregoing direction under Section 5.9 of the Base Indenture.
Section 2.07. SecurityRegistrar; Paying Agent.
The Company appoints Regions Bank, N.A. as Security Registrar and Paying Agent with respect to the Debentures.
Section 2.08. Subordination.
The subordination provisions of Article XIII of the Base Indenture shall apply to the Debentures, provided that, for purposes of such Article XIII, Senior Indebtedness will not include (i) (A) any indebtedness which by its terms ranks equally with the Debentures in right of payment, including guarantees of such indebtedness and including the Company’s 5.275 % Junior Subordinated Debentures Due 2057 and 6.125% Junior Subordinated Debentures Due 2056, (B) any indebtedness which by its terms is subordinated to the Debentures in right of payment, which shall rank junior in right of payment to the Debentures, (C) any indebtedness incurred for the purchase of goods or material or for services obtained in the ordinary course of business, which shall rank equally in right of payment to the Debentures, (D) indebtedness owed by the Company to its subsidiaries, or (E) indebtedness owed by the Company to its employees, which shall rank equally in right of payment to the Debentures.
10
Section 2.09. Satisfaction, Discharge and Defeasance.
The provisions of Article X of the Base Indenture shall apply to the Debentures except that Section 10.1(b)(iii) shall read:
(iii) the Company has delivered to the Trustee an opinion of counsel from a law firm experienced in such matters based on the fact that (x) the Company has received from, or there has been published by, the IRS a ruling or (y) since the date hereof, there has been a change in the applicable United States federal income tax law, in either case to the effect that, and such opinion shall confirm that, the beneficial owner of the Securities of such series and Coupons appertaining thereto will not recognize income, gain or loss for United States federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to United States federal income tax on the same amount and in the same manner and at the same times, as would have been the case if such deposit, defeasance and discharge had not occurred;
ARTICLE 3
COVENANTS
Section 3.01. Dividend and Other Payment Stoppages.
So long as any Debentures remain Outstanding, if the Company shall have given notice of its election to defer interest payments on the Debentures but the related Deferral Period has not yet commenced or a Deferral Period is continuing, the Company shall not, and shall not permit any Subsidiary of the Company to:
(a) declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to, any shares of capital stock of the Company other than:
(i) purchases or acquisitions of shares of the Company’s capital stock in connection with the satisfaction by the Company of its obligations under any employment contract, benefit plan or other similar arrangement with or for the benefit of employees, officers, directors, consultants or agents of the Company or its subsidiaries, or in connection with the satisfaction by the Company of its obligations under any dividend reinvestment plan;
(ii) purchases or acquisitions of shares of the Company’s capital stock in satisfaction of the Company’s obligations under any contract or security requiring it to purchase shares of its capital stock entered into prior to the commencement of the deferral period;
11
(iii) as a result of a reclassification of any series or class of the Company’s capital stock, or the exchange or conversion of one class or series of the Company’s capital stock for or into another class or series of its capital stock;
(iv) the purchase of fractional interests in shares of the Company’s capital stock pursuant to an acquisition or the conversion or exchange provisions of that capital stock or the security being converted or exchanged;
(v) dividends or distributions of the Company’s capital stock, or rights to acquire capital stock, or repurchases or redemptions of capital stock, in each case solely from the issuance or exchange of capital stock;
(vi) any declaration of a dividend in connection with the implementation of a shareholder rights plan, or issuances of capital stock under any such plan in the future, or redemptions or repurchases of any rights outstanding under a shareholder rights plan; or
(vii) acquisitions of the Company’s capital stock in connection with acquisitions of businesses made by the Company (which acquisitions are made by the Company in connection with the satisfaction of indemnification obligations of the sellers of such businesses); or
(b) make any payment of principal, premium, if any, or interest on, or repay, repurchase or redeem, any of the Company’s debt securities or guaranties that rank equally with the Debentures (the “Parity Securities”) or junior to the Debentures, other than (i) any payment of current or deferred interest on Parity Securities and the Debentures made pro rata to the amounts due on such Parity Securities and the Debentures; (ii) any payments of deferred interest on Parity Securities that, if not made, would cause the Company to breach the terms of the instrument governing such Parity Securities; or (iii) any payment of principal on Parity Securities necessary to avoid a breach of the instrument governing such Parity Securities.
ARTICLE 4
REDEMPTION OFTHE DEBENTURES
Section 4.01. Redemption.
(a) The Debentures shall be redeemable in accordance with Article XII of the Base Indenture, except to the extent otherwise provided in this Supplemental Indenture:
(i) in whole at any time or in part from time to time on or after June 15, 2026;
(ii) in whole, but not in part, at any time prior to June 15, 2026, within 90 days after the occurrence of a Regulatory Capital Event or a Tax Event; or
(iii) in whole, but not in part, at any time prior to June 15, 2026, within 90 days after the occurrence of a Rating Agency Event;
12
provided that no partial redemption pursuant to Section 4.01(a)(i) shall be effected (x) unless at least $25 million aggregate principal amount of the Debentures shall remain Outstanding after giving effect to such redemption and (y) if the principal amount of the Debentures shall have been accelerated and such acceleration has not been rescinded or unless all accrued and unpaid interest, including deferred interest, shall have been paid in full on all Outstanding Debentures for all Interest Payment Periods terminating on or before the Redemption Date.
(b) Notwithstanding any provision of Article XII of the Base Indenture to the contrary, the Debentures shall be subject to partial redemption only in the amount of $25 and integral multiples of $25 in excess thereof.
Section 4.02. Redemption Price.
The Redemption Price for any redemption pursuant to Section 4.01 will be equal to (1) in the case of any redemption pursuant to Section 4.01(a)(i) or Section 4.01(a)(ii), 100% of the principal amount of the Debentures being redeemed, plus accrued and unpaid interest to but excluding the Redemption Date, and (2) in the case of any redemption pursuant to Section 4.01(a)(iii), 102% of the principal amount of the Debentures being redeemed, plus accrued and unpaid interest (including compounded interest, if any) to, but excluding, the Redemption Date.
If less than all of the Debentures are to be redeemed, the particular Debentures to be redeemed will be selected not more than 45 days prior to the Redemption Date by the Trustee from the outstanding Debentures not previously called for redemption, by such method as the Trustee in its sole discretion deems fair and appropriate and which may provide for the selection for redemption of a portion of the principal amount of any Debentures, provided that the unredeemed portion of the principal amount of any debenture shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Debenture.
ARTICLE 5
ORIGINAL ISSUE OF DEBENTURES
Section 5.01. Original Issue of Debentures.
Debentures in the aggregate principal amount not to exceed $325,000,000, except as provided in Section 2.01(b) hereof, may, upon execution of this Supplemental Indenture, be executed by the Company and delivered to the Trustee for authentication, and the Trustee shall thereupon authenticate and deliver said Debentures to or upon the written order of the Company, signed by its Chief Executive Officer, its President, or any Vice President (or more senior officer) and its Treasurer or an Assistant Treasurer, without any further action by the Company.
Section 5.02. Calculation of Original Issue Discount.
If during any calendar year any original issue discount shall have accrued on the Debentures, the Company shall file with each Paying Agent (including the Trustee if it is a Paying Agent) by January 31 of the following calendar year (a) a written notice specifying the amount of original issue discount (including daily rates and accrual periods) accrued on Outstanding Debentures as of the end of such year and (b) such other specific information relating to such original issue discount as may then be relevant under the Internal Revenue Code of 1986, as amended from time to time.
13
ARTICLE 6
MISCELLANEOUS
Section 6.01. Effectiveness.
This Supplemental Indenture will become effective upon its execution and delivery.
Section 6.02. Effect of Recitals.
The recitals contained herein and in the Debentures, except the Trustee’s certificates of authentication, shall be taken as the statements of the Company, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Supplemental Indenture or of the Debentures. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of the Debentures or the proceeds thereof.
Section 6.03. Ratification of Base Indenture; Conflicts.
The Base Indenture, as supplemented by this Supplemental Indenture, is in all respects ratified and confirmed, and this Supplemental Indenture shall be deemed part of the Indenture in the manner and to the extent herein and therein provided. In the event of any conflict between this Supplemental Indenture and the Base Indenture or the provisions set forth in the certificates of Debentures, as the case may be, this Supplemental Indenture shall control.
Section 6.04. Debentures Unaffected by Officer’sCertificates.
None of the Company’s officer’s certificates pursuant to the Base Indenture entered into prior to the date hereof applies to the Debentures. To the extent the terms of the Base Indenture are amended by any of such officer’s certificates, no such amendment shall relate or apply to the Debentures. To the extent the terms of the Base Indenture are amended as provided herein, no such amendment shall in any way affect the terms of any such officer’s certificate or any other series of Securities. This Supplemental Indenture shall relate and apply solely to the Debentures.
Section 6.05. Tax Treatment.
The Company agrees, and by acceptance of a Debenture or a beneficial interest in a Debenture each Holder of a Debenture and any Person acquiring a beneficial interest in a Debenture agrees, to treat the Debentures as indebtedness for United States federal income tax purposes.
Section 6.06. Governing Law.
This Supplemental Indenture, the Base Indenture as supplemented hereby and the Debentures shall be governed by and construed in accordance with the laws of the State of New York without regard to the principles of conflict of laws.
14
Section 6.07. Severability.
In case any provision in this Supplemental Indenture, the Indenture as supplemented hereby or in the Debentures shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 6.08. Counterparts.
This Supplemental Indenture may be executed in any number of counterparts each of which shall be an original; but such counterparts shall together constitute but one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
Section 6.09. Waiver of Jury Trial.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.
Section 6.10. Force Majeure.
In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
Section 6.11. Trustee, Paying Agent, and Security RegistrarLiability.
In no event shall the Trustee, Paying Agent, or Security Registrar be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) unless it shall be proved that such party acted in bad faith or was grossly negligent in acting or failing to act.
Section 6.12. Submission to Jurisdiction.
The parties irrevocably submit to the non-exclusive jurisdiction of any New York State or federal court sitting in the Borough of Manhattan, City of New York, over any suit, action or proceeding arising out of or relating to this Indenture. To the fullest extent permitted by applicable law, the parties irrevocably waive and agree not to assert, by way of motion, as a
15
defense or otherwise, any claim that it is not subject to the jurisdiction of any such court, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
Section 6.13. Electronic Communications.
The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, pdf, facsimile transmission or other similar unsecured electronic methods, provided, however, that the Trustee shall have received an incumbency certificate listing persons designated to give such instructions or directions and containing specimen signatures of such designated persons, which such incumbency certificate shall be amended and replaced whenever a person is to be added or deleted from the listing. If the Company elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The Company agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
Section 6.14.FATCA.
The Company agrees (i) to provide the Trustee with such reasonable information as it has in its possession to enable the Trustee to determine whether any payments pursuant to the Indenture are subject to the withholding requirements described in Section 1471(b) of the US Internal Revenue Code of 1986 (the “Code”) or otherwise imposed pursuant to Sections 1471 through 1474 of the Code and any regulations, or agreements thereunder or official interpretations thereof (“Applicable Law”), and (ii) that the Trustee shall be entitled to make any withholding or deduction from payments under the Indenture to the extent necessary to comply with Applicable Law, for which the Trustee shall not have any liability.
Section 6.15. Notices.
Solely for purposes of the Debentures, Section 11.4 of the Base Indenture shall be deleted and replaced by the following:
Any notice or demand that by any provision of this Supplemental Indenture is required or permitted to be given or served by the Trustee or by the Holders on the Company shall be deemed to have been sufficiently given or made, for all purposes if given or served by being deposited postage prepaid by registered or certified mail in a post office letter box addressed (until another address is filed by the Company with the Trustee) to Globe Life Inc., 3700 South Stonebridge Drive, McKinney, Texas 75070, Attention: General Counsel. Any notice, direction, request or demand hereunder to or upon the Trustee (in any capacity hereunder) shall be deemed to have been sufficiently given or made upon receipt by the Trustee.
16
The Trustee, by notice to the Company, may designate additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Holder shall be mailed to it by first class mail, postage prepaid, at its address as it appears on the Security Register and shall be sufficiently given to it if so mailed within the time prescribed; provided that, notwithstanding anything to the contrary herein, notices given to Holders of Global Securities may be given electronically through the facilities of the Depositary.
Failure to mail or deliver a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is mailed or delivered, as the case may be, in the manner provided above, it is duly given, whether or not the addressee receives it.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice to Holders by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
17
IN WITNESS WHEREOF, the Company has caused this Fourth Supplemental Indenture to be signed and delivered, and the Trustee has caused this Fourth Supplemental Indenture to be signed and delivered, all as of the day and year first written above.
| GLOBE LIFE INC. | |
|---|---|
| By: | /s/ M. Shane Henrie |
| Name: M. Shane Henrie | |
| Title: Corporate Senior Vice President and Chief Accounting Officer | |
| REGIONS BANK., as Trustee | |
| --- | --- |
| By: | /s/ James Henry |
| Name: James Henry | |
| Title: Vice President |
Exhibit A
[FORM OF FACE OF DEBENTURE]
[UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF DTC OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN DTC OR SUCH NOMINEE, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]^1^
| ^1^ | Insert in Global Securities. |
|---|
A-1
| No. 001 | Principal Amount: $325,000,000 |
|---|---|
| Issue Date: June 14, 2021 | CUSIP No.: 37959E 300 |
GLOBE LIFE INC.
4.250% Junior Subordinated Debentures due 2061
GLOBE LIFE INC., a corporation organized and existing under the laws of Delaware (hereinafter called the “Company”, which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to [Cede & Co.]^2^, or registered assigns, the principal sum of Three Hundred Twenty-Five Million Dollars ($325,000,000), and all accrued and unpaid interest thereon on June 15, 2061 or, if such date is not a Business Day, the following Business Day (the “Maturity Date”).
The Company further promises to pay interest on said principal sum from June 14, 2021 or from the most recent interest payment date to which interest has been paid or duly provided for. Until the Maturity Date or earlier Redemption Date, each Debenture will bear interest at the per annum rate of 4.250% (the “Coupon Rate”) payable (subject to the interest deferral provisions of Section 2.05 of the Supplemental Indenture) quarterly in arrears on March 15, June 15, September 15 and December 15 of each year (each such date, an “Interest Payment Date”), commencing on September 15, 2021, and (to the extent that payment of such interest is enforceable under applicable law) on any overdue installment of interest at such interest rate, compounded quarterly. Interest payments will include accrued interest from and including the last date in respect of which interest has been duly paid or provided for to, but not including, the next succeeding Interest Payment Date, the Maturity Date or the Redemption Date, as the case may be. The amount of interest payable for any full Interest Payment Period will be computed on the basis of a 360-day year of twelve thirty-day months, and the amount of interest payable for any period shorter than a full Interest Payment Period for which interest is computed will be computed on the basis of thirty-day months and, for periods of less than a thirty-day month, the actual number of days elapsed per thirty-day month.
In the event that any date on which interest is payable on this Debenture is not a Business Day, then payment of interest payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of such delay). For so long as the Debentures are represented by one or more Global Securities, the interest installment so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Base Indenture, be paid to the Person in whose name this Debenture (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date next preceding the Interest Payment Date, which shall be the record date for such Interest Payment Date; provided that in the event the Debentures at any time are not represented solely by one or Global Securities, the Company may select a different record date for such Interest Payment Date, which shall be at least one Business Day before an Interest Payment Date. Any such interest installment not punctually paid or duly provided for shall forthwith cease to be payable to the registered Holders on such record date, and may be paid to the Person in whose
| ^2^ | Insert in Global Securities. |
|---|
A-2
name the Debentures (or one or more Predecessor Securities) is registered at the close of business on a special record date to be fixed by the Trustee for the payment of such defaulted interest after the Company has deposited with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such defaulted interest, notice whereof shall be given to the registered Holders of this series of Debenture not less than ten days prior to such special record date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Debentures may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture.
The principal of (and premium, if any) and the interest (including Compounded Interest) on this Debenture shall be payable at the office or agency of the Trustee maintained for that purpose in the United States, in any coin or currency of the United States of America which at the time of payment is legal tender for payment of public and private debts; provided, however, that payment of interest may be made at the option of the Company by check mailed to the registered Holder at such address as shall appear in the Security Register; provided further that, notwithstanding the foregoing provisions of this sentence, for so long as the Depositary (as defined in the Indenture referred to on the reverse hereof) is the Holder of all of the Debentures Outstanding, and provided that the Depositary has provided wire transfer instructions to the Company or the Paying Agent in a timely manner prior to each Interest Payment Date (which it may do by standing instructions) designating an account of the Depositary or its nominee at a commercial bank in the United States to which it wishes payments of interest on the Debentures to be made, the Company shall pay interest on the Debentures by wire transfer of federal (same day) funds to the account of the Depositary or its nominee in accordance with such wire transfer instructions.
The indebtedness evidenced by this Debenture is, to the extent provided in the Indenture, subordinate and subject in right of payment to the prior payment in full of all Senior Indebtedness, and this Debenture is issued subject to the provisions of the Indenture with respect thereto. Each Holder of this Debenture by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Trustee on its behalf to take such actions as may be necessary or appropriate to effectuate the subordination so provided and (c) appoints the Trustee its attorney-in-fact for any and all such purposes. Each Holder hereof, by its acceptance hereof, waives all notice of the acceptance of the subordination provisions contained herein and in the Indenture by each holder of Senior Indebtedness, whether now Outstanding or hereafter incurred, and waives reliance by each such holder upon said provisions.
As provided in the Indenture, so long as no Event of Default has occurred and is continuing, the Company shall have the right on one or more occasions, to defer the payment of interest for one or more Interest Payment Periods up to five consecutive years, provided that no Deferral Period shall extend beyond the Maturity Date, the earlier accelerated maturity date hereof or other redemption in full hereof. If the Company shall fail to pay interest hereon on any Interest Payment Date, the Company shall be deemed to elect to defer payment of such interest on such Interest Payment Date, unless the Company shall pay such interest in full within five Business Days after any such Interest Payment Date. If the Company shall have paid all deferred interest hereon, the Company shall have the right to elect to begin a new Deferral Period as provided in the Indenture.
A-3
Reference is hereby made to the further provisions of this Debenture set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Debenture shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
Any additional Debentures issued under the same CUSIP as this Debenture shall be fungible with this Debenture for U.S. federal income tax purposes.
A-4
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated: June 14, 2021
| GLOBE LIFE INC., as Issuer | |
|---|---|
| By: | |
| Name: M. Shane Henrie | |
| Title: Corporate Senior Vice President and Chief Accounting Officer |
Certificate of Authentication
This is one of the Securities referred to in the within-mentioned Indenture.
| Regions Bank., as Trustee | |
|---|---|
| By: | |
| Authorized Signatory | |
| Dated: |
A-5
REVERSE OF SECURITY
This Debenture is one of a duly authorized issue of securities of the Company (herein called the “Securities”), issued and to be issued in one or more series under a Subordinated Indenture, dated as of November 2, 2001 (herein called the “Base Indenture”), between the Company and Regions Bank. (as successor in interest to The Bank of New York and The Bank of New York Mellon Trust Company, N.A.), as Trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), as supplemented and amended by the Fourth Supplemental Indenture, dated as of June 14, 2021, each between the Company and the Trustee (the “Supplemental Indenture”, and together with the Base Indenture, the “Indenture”), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Trustee, the Company and the Holders of the Debentures, and of the terms upon which the Debentures are, and are to be, authenticated and delivered. The terms of the Debentures include those stated in the Indenture, and the Debentures are subject to all such terms. This Debenture is one of the series designated on the face hereof, initially limited in aggregate principal amount to $325,000,000.
All terms used in this Debenture that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
This Debenture shall be redeemable at the option of the Company in accordance with the terms of the Indenture. In particular, this Security is redeemable:
(a) in whole at any time or in part from time to time on or after June 15, 2026; or
(b) in whole, but not in part, at any time prior to June 15, 2026 within 90 days after the occurrence of a Tax Event, a Regulatory Capital Event or a Rating Agency Event;
provided that no such partial redemption shall be effected (x) in the case of redemption pursuant to subsection (a), unless at least $25 million aggregate principal amount of Securities of this series shall remain Outstanding after giving effect to such redemption and (y) if the principal amount of the Debentures of this series shall have been accelerated and such acceleration has not been rescinded or unless all accrued and unpaid interest, including deferred interest, shall have been paid in full on all Outstanding Debentures for all Interest Payment Periods terminating on or before the Redemption Date.
Notice of redemption shall be given at least 30 but not more than 60 days before the Redemption Date to each Holder of Securities of this series to be redeemed at its registered address. The notice of redemption for such Debentures shall state, among other things, the amount of Debentures to be redeemed, the Redemption Date, if not then ascertainable, the manner in which the Redemption Price shall be calculated and the place or places that payment shall be made upon presentation and surrender of such Debenture to be redeemed. Unless the Company defaults in the payment of the Redemption Price together with accrued interest, interest will cease to accrue on any Debentures that have been called for redemption on the Redemption Date.
A-6
In the event of redemption of this Debenture in part only, a new Debenture or Debentures for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.
Installments of accrued and unpaid interest whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of the Debentures, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Dates according to their terms.
The Indenture contains provisions for satisfaction, discharge and defeasance of the entire indebtedness on this Debenture, upon compliance by the Company with certain conditions set forth therein.
The Debentures are not entitled to the benefit of any sinking fund.
If an Event of Default with respect to the Debentures shall occur and be continuing, the principal of the Debentures may be declared due and payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Debenture shall be conclusive and binding upon such Holder and upon all future Holders of this Debenture and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this Debenture or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of (and premium, if any) and interest on this Debenture at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Debenture is registrable in the Security Register, upon surrender of this Debenture for registration of transfer at the office or agency of the Company in any place where the principal of (and premium, if any) and interest on this Debenture are payable duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Debentures, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
A-7
The Debenture are issuable only in registered form without coupons in denominations of $25 and any integral multiples of $25 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Debentures are exchangeable for a like aggregate principal amount of Debentures of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Debenture is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of or the interest on this Debenture, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture, against any incorporator, shareholder, officer or director, past, present or future, as such, of the Company or of any predecessor or successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issuance hereof, expressly waived and released.
THIS DEBENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS.
A-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Debenture to:
(Insert assignee’s social security or tax identification number)
(Insert address and zip code of assignee)
agent to transfer this Debenture on the books of the Security Registrar. The agent may substitute another to act for him or her.
| Dated: | Signature: |
|---|---|
| Signature Guarantee: |
(Sign exactly as your name appears on the other side of this Security)
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Security Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Security Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
A-9
EX-5.1
Exhibit 5.1
June 14, 2021
Globe Life Inc.
3700 South Stonebridge Drive
McKinney, Texas 75070
Ladies and Gentlemen:
We have acted as special counsel to Globe Life Inc., a Delaware corporation (the “Company”), in connection with the Company’s offering, pursuant to the Company’s Registration Statement on Form S-3, File No. 333-256848 (the “Registration Statement”), filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), of $325,000,000 aggregate principal amount of its 4.250% Junior Subordinated Debentures due 2061 (the “Debentures”), to be issued under an Indenture, dated November 2, 2001, between the Company and Regions Bank, as trustee (the “Trustee”), as supplemented by the Fourth Supplemental Indenture dated as of June 14, 2021 (such Indenture, as so supplemented, the “Indenture”), and pursuant to the Prospectus Supplement, dated June 9, 2021, to the Prospectus dated June 7, 2021 (together, the “Prospectus”), and the Underwriting Agreement, dated as of June 9, 2021, relating to the Debentures (the “Underwriting Agreement”), among the Company and the underwriters named on Schedule A thereto.
This opinion is being furnished to you for filing as Exhibit 5.1 to a Current Report on Form 8-K of the Company to be filed with the Commission on or about the date hereof (the “Current Report”), and for incorporation by reference into the Registration Statement.
In connection with the opinions expressed below, we have reviewed the following documents:
(i) the Registration Statement, including the documents incorporated by reference therein;
(ii) the Prospectus in the form filed with the Commission pursuant to Rule 424(b) under the Securities Act;
(iii) an executed copy of the Indenture;
(iv) the global security dated the date hereof evidencing $325,000,000 aggregate principal amount of the Debentures, as executed by the Company and authenticated by the Trustee;
(v) an executed copy of the Underwriting Agreement;
(vi) the Company’s Restated Certificate Incorporation, as certified by the Secretary of State of the State of Delaware;
(vii) the Company’s Amended and Restated Bylaws, as certified by the corporate secretary of the Company; and
(viii) certain resolutions of the Board of Directors of the Company and the Pricing Committee of the Board of Directors of the Company relating to the transactions contemplated by the Registration Statement, the Prospectus Supplement, the Indenture and related matters.
In addition, we have examined and relied upon such other documents, certificates, records and other instruments as we have deemed necessary or appropriate for purposes of the opinions expressed below. In all such examinations and in rendering our opinions, 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 conformed, certified, photostatic or reproduced copies and the authenticity of the originals of such latter documents. In making our examination of documents executed by parties other than the Company, we have assumed that such parties had the power, corporate or other, to enter into such documents 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, binding effect and enforceability thereof on or against such parties. As to any facts material to the opinions expressed herein that we have not independently established or verified, we have relied upon oral or written statements and representations of officers and other representatives of the Company, public officials and others.
Based upon the foregoing and subject to the further assumptions, exceptions, qualifications and limitations set forth below, we are of the opinion that the Debentures have been validly issued by the Company and constitute valid, binding and enforceable obligations of the Company, entitled to the benefits of the Indenture.
We hereby consent to the filing of this opinion with the Commission as an exhibit to the Current Report, to the incorporation by reference of this opinion into the Registration Statement, to the reference to our firm in the Prospectus under the caption “Legal Matters,” as counsel for the Company who passed upon the validity of the Debentures. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder. The opinions herein are expressed as of the date hereof unless otherwise expressly stated, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable law.
| Very truly yours, |
|---|
| /s/ McAfee & Taft A Professional Corporation |
| McAfee & Taft A Professional Corporation |
EX-8.1
Exhibit 8.1
June 14, 2021
Globe Life, Inc.
3700 South Stonebridge Drive
McKinney, Texas 75070
| Re: Globe Life, Inc. 4.250% Junior<br><br><br>Subordinated Debentures due 2061, in the<br><br><br>aggregate principal amount of $325,000,000 |
|---|
Ladies and Gentlemen:
We have acted as counsel for Globe Life, Inc., a Delaware corporation (the “Company”), in connection with the issuance and sale of $325,000,000 aggregate principal amount of its 4.250% Junior Subordinated Debentures due 2061 (the “Debentures”) pursuant to prospectus dated June 7, 2021 (the “Base Prospectus”) and the prospectus supplement dated June 9, 2021 (the “Prospectus Supplement”). The Debentures are being issued by the Company pursuant to the Junior Subordinated Indenture, dated November 2, 2001, between the Company and Regions Bank (as successor in interest to the Bank of New York and The Bank of New York Mellon Trust Company), as trustee, as amended and supplemented by the Fourth Supplemental Indenture to be dated as of the issuance date of the Debentures between the Company and Regions Bank (such Indenture, as so supplemented, the “Indenture”).
In rendering the opinion expressed below, we have made such legal and factual examinations and inquiries as we have deemed necessary or advisable for the purpose of rendering this opinion letter, including but not limited to the examination of the following: (i) the Base Prospectus and the Prospectus Supplement, (ii) the Indenture and (iii) such other documents as we have deemed necessary or appropriate as a basis for the opinion set forth below.
As to any facts material to the opinion expressed herein, we have relied upon certificates and statements and representations and warranties of the officers and other representatives and agents of the parties to the documents and of public officials. In rendering this opinion letter, except for the matters that are specifically addressed in the opinion expressed below, with your permission, we have assumed, and are relying on without independent investigation, (i) the authenticity of all documents submitted to us as originals, (ii) the conformity to the originals of all documents submitted to us as certified or photostatic copies and the authenticity of the originals of such copies, (iii) the genuineness of signatures, (iv) the legal capacity of natural persons signing the documents, (v) the necessary entity formation and
continuing existence in the jurisdiction of formation, and the necessary licensing and qualification in all jurisdictions, of all parties to the documents, (vi) the necessary entity authorization, execution, delivery and enforceability (as limited by bankruptcy and other insolvency laws) of all documents by all parties thereto, and the necessary entity power and authority with respect thereto, (vii) the validity, binding effect, and enforceability of all documents, (viii) that each of the parties to the documents will comply (without waiver) with all of the terms of such documents, and (ix) that there is not any other agreement that modifies or supplements the agreements expressed in any document to which this opinion letter relates and that renders the opinion expressed below inconsistent with such document as so modified or supplemented.
In rendering this opinion letter, except for matters that are specifically addressed in the opinion expressed below, we have made no inquiry, have conducted no investigation and assume no responsibility with respect to (i) the accuracy of and compliance by the parties thereto with the representations, warranties, covenants, certifications and assumptions as to factual matters contained in any document or (ii) the conformity of the documents to the requirements of any agreement to which this opinion letter relates.
Based on the foregoing and subject to the qualifications, representations, warranties, covenants, certifications and assumptions stated herein, we are of the opinion that although there are no regulations, rulings or judicial precedents addressing the characterization of securities having terms substantially similar to the Debentures for U.S. federal income tax purposes, the Debentures will be classified for U.S. federal income tax purposes as indebtedness of the Company.
The existing Treasury regulations under section 385 of the Internal Revenue Code of 1986, as amended (the “Code”), provide rules for defining certain instruments held as interests in a corporation as equity or indebtedness for U.S. federal income tax purposes. However, these rules do not address securities with terms substantially the same as the Debentures. Furthermore, there are no other controlling Treasury regulations, published rulings, or judicial decisions involving securities with terms substantially the same as the Debentures that discuss whether, for U.S. federal income tax purposes, the securities constitute equity or indebtedness. Therefore, our opinion regarding the characterization of the Debentures as evidences of indebtedness is based upon rulings and judicial decisions under the Code involving situations that we consider to be analogous and an analysis of all of the facts and circumstances surrounding the issuance and sale of the Debentures.
The foregoing opinion is based only on the federal income tax laws of the United States, Treasury regulations promulgated thereunder, and administrative and judicial interpretations thereof, all of which are subject to change. The foregoing opinion is limited to the matters addressed herein, and no other opinion is rendered with respect to other United States federal tax matters or to any issues arising under the tax laws of any other country, or any state or locality or governmental agency (other than the Internal Revenue Service) including without limitation (i) any statute, regulation, or (ii) the securities or tax laws of any jurisdiction (other than the federal tax laws of the United States). You should be aware that this opinion letter represents conclusions as to the application of existing law, regulations, administrative rules and practices, and legislative history to the transactions described above. There can be no assurance, however, that existing law will not change or that contrary positions will not be taken by the Internal Revenue Service. Any such change might be retroactive and might affect the opinion set forth above.
- 2 -
Except as set forth above, we express no other opinion. This opinion is expressed as of the date hereof, and we are under no obligation to supplement or revise our opinion to reflect any legal developments or factual matters arising subsequent to the date hereof or the impact of any information, document, certificate, record, statement, representation, covenant, or assumption relied upon herein that becomes incorrect or untrue.
We hereby consent to the filing of this opinion as an exhibit to a Form 8-K filed in connection with the Base Prospectus and to the references to McAfee & Taft A Professional Corporation under the heading “United States Federal Income Tax Matters” in the Base Prospectus and the Supplemental Prospectus. We do not admit by giving this consent that we are in the category of persons whose consent is required under Section 7 of the Act.
Regards,
| /s/ McAfee & Taft A Professional Corporation |
|---|
| McAfee & Taft A Profession Corporation |
- 3 -