Exhibit 4
TORCHMARK CORPORATION
as Issuer
and
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A.
as Trustee
Third Supplemental
Indenture
Dated as of June 30,
2009
9.25% Senior Notes due
2019
THIRD SUPPLEMENTAL
INDENTURE
THIRD SUPPLEMENTAL INDENTURE, dated
as of June 30, 2009 (this “ Third Supplemental
Indenture ”) by and between Torchmark Corporation, a
Delaware corporation (the “ Company ”) and The
Bank of New York Mellon Trust Company, N.A., a national banking
association (successor in interest to J.P. Morgan Trust Company,
N.A), as trustee under the Indenture (defined below) (the “
Trustee ”).
WITNESSETH:
WHEREAS, the Company entered into
that certain Indenture (the “ Base Indenture ”
and, together with this Third Supplemental Indenture, the “
Indenture ”) dated as of February 1, 1987 with
Morgan Guaranty Trust Company of New York, as trustee (“
Morgan Guaranty ”), providing for the issuance of
Securities in series by the Company.
WHEREAS, the Company, Morgan
Guaranty and The First National Bank of Chicago entered into that
certain Instrument of Resignation, Appointment and Acceptance
effective August 8, 1994, providing for the replacement of
Morgan Guaranty as trustee under the Base Indenture with The First
National Bank of Chicago.
WHEREAS, the Company, Bank One Trust
Company, National Association (successor in interest to The First
National Bank of Chicago) and The Bank of New York entered into
that certain Supplemental Indenture dated December 14, 2001
(the “ First Supplemental Indenture ”),
(i) creating and authorizing a series of Securities under the
Base Indenture entitled “6 1 / 4
% Senior Notes due 2006” (the
“ 2006 Notes ”) and (ii) appointing The
Bank of New York as an additional trustee pursuant to
Section 901(6) of the Base Indenture with respect to the 2006
Notes.
WHEREAS, Bank One Trust Company,
National Association transferred its corporate trust business to
J.P. Morgan Trust Company, National Association effective
November 15, 2003.
WHEREAS, the Company, The Bank of
New York and The Bank of New York Trust Company, N.A. entered into
an Agreement of Resignation, Appointment and Acceptance effective
May 5, 2005, providing for the replacement of The Bank of New
York as an additional trustee under the Indenture with The Bank of
New York Trust Company, N.A.
WHEREAS, the Company, J.P. Morgan
Trust Company, N.A. (successor in interest to Bank One Trust
Company, National Association) and The Bank of
1
New York Trust Company, N.A. entered into that
certain Second Supplemental Indenture dated June 23, 2006 (the
“ Second Supplemental Indenture ”),
(i) creating and authorizing a series of Securities under the
Base Indenture entitled “6.375% Senior Notes due 2016”
(the “ 2016 Notes ”) and (ii) appointing
The Bank of New York Trust Company, N.A. as an additional trustee
pursuant to Section 901(6) of the Base Indenture with respect
to the 2016 Notes.
WHEREAS, The Bank of New York Trust
Company, N.A. succeeded to the corporate trust business of J.P.
Morgan Trust Company, N.A. effective October 1,
2006.
WHEREAS, the Trustee changed its
name to The Bank of New York Mellon Trust Company, N.A. effective
July 1, 2008.
WHEREAS, Section 901(5) of the
Base Indenture provides that a supplemental indenture may be
entered into by the Company and the Trustee without the consent of
any Holders to make provisions to establish the form or terms of
Securities of any series as permitted by Sections 201 and 301 of
the Base Indenture.
WHEREAS, the Company has furnished
the Trustee with (i) an Opinion of Counsel stating that the
execution of this Third Supplemental Indenture is authorized or
permitted by the Base Indenture; (ii) an Officers’
Certificate stating that all conditions precedent under the Base
Indenture for the execution of this Third Supplemental Indenture
have been satisfied; and (iii) a Secretary’s Certificate
certifying the resolutions of the Board of Directors of the Company
authorizing this Third Supplemental Indenture.
WHEREAS, for its lawful purposes,
the Company desires to create and authorize a series of Securities
under the Base Indenture entitled “9.25% Senior Notes due
2019” (the “ Notes ”) in an initial
aggregate principal amount of Three Hundred Million Dollars
($300,000,000) and, to provide the terms and conditions upon which
the Notes are to be executed, registered, authenticated, issued and
delivered, the Company has duly authorized the execution and
delivery of this Third Supplemental Indenture setting forth the
terms of the Notes.
WHEREAS, this Third Supplemental
Indenture shall amend the Base Indenture and supersede the First
Supplemental Indenture and the Second Supplemental Indenture in
their entirety but only with respect to the Notes; to the extent
the terms of the Base Indenture are inconsistent with this Third
Supplemental Indenture, the terms of this Third Supplemental
Indenture shall govern.
WHEREAS, all acts and things
necessary to make the Notes, when executed by the Company and
authenticated and delivered hereunder and duly
2
issued by the Company, the valid, binding and
legal obligations of the Company, and to make this Third
Supplemental Indenture a valid, binding and legal obligation of the
Company, have been done and performed.
NOW, THEREFORE, in order to declare
the terms and conditions upon which the Notes are executed,
registered, authenticated, issued and delivered, and in
consideration of the premises, of the purchase and acceptance of
such Notes by the Holders thereof, the Company covenants and agrees
with the Trustee, for the equal and proportionate benefit of the
respective Holders from time to time of such Notes, as
follows:
ARTICLE 1
D EFINITIONS
Section 1.01 .
Definitions . For all purposes of the Indenture, except as
otherwise expressly provided or unless the context otherwise
requires:
(i) the terms defined in this
Article 1 have the meanings assigned to them in this Article and
include the plural as well as the singular;
(ii) capitalized terms not defined
herein have the meanings given in the Base Indenture;
(iii) all other terms used herein
that are defined in the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them therein;
and
(iv) the words “herein,”
“hereof’ and “hereunder” and other words of
similar import refer to this Third Supplemental Indenture as a
whole and not to any particular Article, Section or other
subdivision.
“ Agent Members ”
has the meaning specified in Section 2.05.
“ Applicable Procedures
” means, with respect to any transfer or exchange of or for
beneficial interest in a Global Note, the rules and procedures of
the Depositary, Euroclear and Clearstream that apply to such
transfer or exchange.
“ Clearstream ”
means Clearstream Banking, société anonyme,
Luxembourg (formerly Cedel Bank, société anonyme),
and any successor thereto.
“ Comparable Treasury
Issue ” means the United States Treasury security
selected by a Reference Treasury Dealer as having an actual or
interpolated maturity comparable to the remaining term of the Notes
called for redemption, that would be utilized, at the time of
selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable
maturity to the remaining term of the Notes called for
redemption.
3
“ Comparable Treasury
Price ” means, with respect to any Redemption Date, the
average, as determined by the Company or such agent as may be
appointed by the Company for this purpose, of the Reference
Treasury Dealer Quotations for that Redemption Date.
“ Depositary ”
means The Depository Trust Company until a successor Depositary
shall have become such pursuant to the applicable provisions of the
Indenture and thereafter “Depositary” shall mean such
successor Depositary.
“ Euroclear ”
means the Euroclear System and any successor thereto.
“ Exchange Act ”
means the U.S. Securities Exchange Act of 1934, as
amended.
“ Global Note ”
means a Note in global form registered in the Security Register in
the name of a Depositary or a nominee thereof.
“ Physical Notes
” means permanent certificated Notes in registered form
issued in denominations of $2,000 and integral multiples of $1,000
above that amount.
“ Principal Amount
” of a Note means the Principal Amount as set forth on the
face of the Note.
“ Redemption Date
” shall mean the date specified for redemption of the Notes
in accordance with the terms of the Notes and
Section 3.01.
“ Redemption Price
” has the meaning specified in Section 3.01.
“ Reference Treasury
Dealer ” means Wachovia Capital Markets, LLC, SunTrust
Robinson Humphrey, Inc. and one other U.S. Government securities
dealer selected by the Company, and each of their respective
successors.
“ Reference Treasury Dealer
Quotations ” means, on any Redemption Date, the average,
as determined by the Company or such agent as may be appointed by
the Company for this purpose, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage
of its principal amount) quoted in writing to the Company by each
Reference Treasury Dealer at 3:30 p.m., New York City time, on
the third Business Day preceding that Redemption Date.
“ Remaining Scheduled
Payments ” means the remaining scheduled payments of
principal of and interest on the Notes called for redemption that
would be due after the related Redemption Date but for that
redemption; provided
4
that if a Redemption Date is not an Interest
Payment Date, the amount of the next succeeding scheduled interest
payment on the Notes will be reduced by the amount of interest
accrued on the Notes to such Redemption Date.
“ Treasury Rate ”
means, with respect to any Redemption Date, the rate per year equal
to the semi-annual equivalent yield to maturity (computed as of the
third Business Day immediately preceding that Redemption Date) of
the Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for that Redemption
Date.
ARTICLE 2
T HE
N OTES
Section 2.01 . Title and
Terms . There is hereby created and authorized under the Base
Indenture a series of Securities entitled “9.25% Senior Notes
due 2019,” which shall be a series limited initially to
$300,000,000 aggregate Principal Amount (except that the Company
may, without the consent of Holders, reopen this series of Notes
and issue additional Notes so as to increase the aggregate
Principal Amount of Notes Outstanding in compliance with the
procedures set forth in the Base Indenture, so long as any such
additional Notes have the same tenor and terms (including, without
limitation, rights to receive accrued and unpaid interest as the
Notes then Outstanding); provided that no such additional Notes may
be issued unless they are treated as part of the same
“issue” as the Notes for U.S. federal income tax
purposes; and further provided that the additional Notes have the
same CUSIP number as the Notes). For all purposes of the Indenture,
the term “Notes” shall include the Notes initially
issued on the date of original issuance of the Notes and any other
Notes issued after such date under the Indenture. For purposes of
the Indenture, all Notes shall vote together and otherwise
constitute a single series of Securities.
The Notes shall rank equally and
pari passu with all other unsecured and unsubordinated
indebtedness of the Company.
Section 2.02 . Forms of
Notes . The Notes shall be substantially in the form set forth
in Exhibit A hereto with such appropriate insertions,
omissions, substitutions and other variations as are required or
permitted by the Indenture, and with such letters, numbers or other
marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor, the Internal Revenue
Code of 1986, as amended, and the regulations thereunder, or as
may, consistently herewith, be determined by the officers executing
such Notes, as evidenced by their execution thereof.
The terms and provisions contained
in the form of Notes attached hereto as Exhibit A shall
constitute, and are hereby expressly made, a part of this
Third
5
Supplemental Indenture and the Company and the
Trustee, by their execution and delivery of this Third Supplemental
Indenture, expressly agree to such terms and provisions and to be
bound thereby.
The Notes shall initially be issued
in the form of a permanent Global Note in registered form. The
aggregate Principal Amount of the Global Note may from time to time
be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depositary, as hereinafter
provided.
Section 2.03.
Denominations. The Notes shall be issuable only in
registered form without coupons and in denominations of $2,000 and
integral multiples of $1,000 above that amount.
Section 2.04. Registration
of Transfer and Exchange. The Company shall cause to be kept at
the Corporate Trust Office of the Trustee a register (the register
maintained in such office and in any other office or agency
designated pursuant to Section 1002 of the Base Indenture
being herein sometimes collectively referred to as the “
Security Register ”) in which, subject to such
reasonable regulations as it may prescribe, the Company shall
provide for the registration of Notes and of transfers of Notes.
The Trustee is hereby appointed “Security Registrar”
(the “ Security Registrar ”) for the purpose of
registering Notes and transfers of Notes as herein
provided.
Upon surrender for registration of
transfer of any Note at an office or agency of the Company
designated pursuant to Section 1002 of the Base Indenture for
such purpose, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Notes of any authorized
denominations and of a like aggregate principal amount and
tenor.
At the option of the Holder and
subject to the other provisions of this Section 2.04 and
Section 2.05 hereof and Section 309 of the Base
Indenture, Notes may be exchanged for other Notes of any authorized
denominations and of a like aggregate principal amount and tenor,
upon surrender of the Notes to be exchanged at such office or
agency. Whenever any Notes are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and
deliver, the Notes which the Holder making the exchange is entitled
to receive.
All Notes issued upon any
registration of transfer or exchange of Notes shall be the valid
obligations of the Company, evidencing the same debt, and entitled
to the same benefits under the Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Every Note presented or surrendered
for registration of transfer or for exchange shall (if so required
by the Company or the Trustee) be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the
Company and the Note Registrar duly executed, by the Holder thereof
or his attorney duly authorized in writing.
6
No service charge shall be made for
any registration of transfer or exchange of Notes, but the Company
may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
registration of transfer or exchange of Notes, other than exchanges
pursuant to Section 304 of the Base Indenture not involving
any transfer.
If the Company elects to redeem
Notes, it shall not be required to (i) issue, register the
transfer of or exchange any Note during the period beginning at the
opening of business 15 days before the day the Company mails the
notice of redemption and ending at the close of business on the day
such notice of redemption is mailed or (ii) register the
transfer or exchange of any Note after a notice of redemption has
been given to Holders except, where such notice provides that such
Note is to be redeemed only in part, the Company shall be required
to exchange or register a transfer of the portion thereof not to be
redeemed.
Neither the Trustee nor any of its
agents shall (i) have any duty to monitor compliance with or
with respect to any federal or state or other securities or tax
laws or (ii) have any duty to obtain documentation relating to
any transfers or exchanges other than as specifically required
hereunder.
As used in this Section, the term
“ transfer ” encompasses any sale, pledge,
transfer or other disposition of any Note.
Section 2.05. Book-Entry
Provisions for a Global Note. (a) The Global Note
initially shall be registered in the name of the Depositary or the
nominee of such Depositary and be delivered to the Trustee as
custodian for the Depositary.
Investors may hold their interests
in the Global Note directly through the Depositary, Euroclear or
Clearstream, if they are members of or participants in such systems
(“ Agent Members ”), or indirectly through
organizations that are Agent Members in such systems. If interests
in the Global Note are held through Euroclear or Clearstream,
Euroclear and Clearstream shall hold such interests in the Global
Note through the Depositary on behalf of their Agent
Members.
Agent Members of the Depositary,
Euroclear or Clearstream shall have no rights under the Indenture
with respect to any Global Note held on their behalf by the
Depositary, or the Trustee as its custodian, or under the Global
Note, and the Depositary may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner
of the Global Note for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or
any agent of th
