8.500%
Senior Notes due 2019
Goldman,
Sachs & Co.,
J.P. Morgan Securities Inc.,
As representatives of the several Underwriters
named in Schedule I hereto,
c/o
Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004,
c/o J.P.
Morgan Securities Inc.,
270 Park Avenue,
New York, New York 10017.
Aflac
Incorporated, a Georgia corporation (the “Company”),
proposes, subject to the terms and conditions stated herein, to
issue and sell to the Underwriters named in Schedule I hereto
(the “Underwriters”), for whom you are acting as
representatives (the “Representatives”), an aggregate
of $850,000,000 principal amount of the Notes specified above (the
“Securities”) .
1. The
Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a)
An “automatic shelf registration statement” as defined
under Rule 405 under the Securities Act of 1933, as amended
(the “Act”), on Form S-3 (File No. 333-159111) in
respect of the Securities has been filed with the Securities and
Exchange Commission (the “Commission”) not earlier than
three years prior to the date hereof; such registration statement,
and any post-effective amendment thereto, became effective on
filing; and no stop order suspending the effectiveness of such
registration statement or any part thereof has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission, and no notice of objection of the Commission to the use
of such registration statement or any post-effective amendment
thereto pursuant to Rule 401(g)(2) under the Act has been
received by the Company (the base prospectus filed as part of such
registration statement, in the form in which it has most recently
been filed with the Commission on or prior to the date of this
Agreement,
is
hereinafter called the “Basic Prospectus”; any
preliminary prospectus (including any preliminary prospectus
supplement) relating to the Securities filed with the Commission
pursuant to Rule 424(b) under the Act is hereinafter called a
“Preliminary Prospectus”; the various parts of such
registration statement, including all exhibits thereto but
excluding the Form T-1 and including any prospectus supplement
relating to the Securities that is filed with the Commission and
deemed by virtue of Rule 430B to be part of such registration
statement, each as amended at the time such part of the
registration statement became effective, are hereinafter
collectively called the “Registration Statement”; the
Basic Prospectus, as amended and supplemented immediately prior to
the Applicable Time (as defined in Section 1(c) hereof), is
hereinafter called the “Pricing Prospectus”; the form
of the final prospectus relating to the Securities filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof is hereinafter called the
“Prospectus”; any reference herein to the Basic
Prospectus, the Pricing Prospectus, any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Act, as of the date of such
prospectus; any reference to any amendment or supplement to the
Basic Prospectus, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any post-effective
amendment to the Registration Statement, any prospectus supplement
relating to the Securities filed with the Commission pursuant to
Rule 424(b) under the Act and any documents filed under the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and incorporated therein, in each case after the date
of the Basic Prospectus, such Preliminary Prospectus, or the
Prospectus, as the case may be; any reference to any amendment to
the Registration Statement shall be deemed to refer to and include
any annual report of the Company filed pursuant to Section 13(a) or
15(d) of the Exchange Act after the effective date of the
Registration Statement that is incorporated by reference in the
Registration Statement; and any “issuer free writing
prospectus” as defined in Rule 433 under the Act
relating to the Securities is hereinafter called an “Issuer
Free Writing Prospectus”);
(b)
No order preventing or suspending the use of any Preliminary
Prospectus or any Issuer Free Writing Prospectus has been issued by
the Commission, and each Preliminary Prospectus, at the time of
filing thereof, conformed in all material respects to the
requirements of the Act and the Trust Indenture Act of 1939, as
amended (the “Trust Indenture Act”), and the rules and
regulations of the Commission thereunder, and did 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, in the light of the circumstances under which
they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through the
Representatives expressly for use therein;
(c)
For the purposes of this Agreement, the “Applicable
Time” is 4:10 p.m. (Eastern time) on the date of this
Agreement; the Pricing Prospectus as
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supplemented
by the final term sheet prepared and filed pursuant to Section 5(a)
hereof, taken together (collectively, the “Pricing Disclosure
Package”), as of the Applicable Time, did 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; and each Issuer Free Writing Prospectus listed on
Schedule II(a) hereto does not conflict with the information
contained in the Registration Statement, the Pricing Prospectus or
the Prospectus and each such Issuer Free Writing Prospectus, as
supplemented by and taken together with the Pricing Disclosure
Package as of the Applicable Time, did 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;
provided, however, that this representation and warranty shall not
apply to statements or omissions made in an Issuer Free Writing
Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through the
Representatives expressly for use therein;
(d)
The documents incorporated by reference in the Pricing Prospectus
and the Prospectus, when they became effective or were filed with
the Commission, as the case may be, conformed in all material
respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; any further documents so filed and
incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through the
Representatives expressly for use therein; and no such documents
were filed with the Commission since the Commission’s close
of business on the business day immediately prior to the date of
this Agreement and prior to the execution of this Agreement, except
as set forth on Schedule II(b) hereto;
(e)
The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement and
the Prospectus will conform, in all material respects to the
requirements of the Act and the Trust Indenture Act and the rules
and regulations of the Commission thereunder and do not and will
not, as of the applicable effective date as to each part of the
Registration Statement and as of the applicable filing date as to
the Prospectus and any amendment or supplement thereto, contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; provided,
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however,
that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an
Underwriter through the Representatives expressly for use
therein;
(f)
Each of the Company, American Family Life Assurance Company of New
York (“Aflac NY”), and any subsidiary of the Company
that would qualify as a “significant subsidiary” of the
Company under Rule 1-02 of Regulation S-X (each such
subsidiary and Aflac NY, a “Designated Subsidiary”) has
not sustained since the date of the latest audited financial
statements included or incorporated by reference in the Pricing
Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or
contemplated in the Pricing Prospectus, which loss or interference
would have a Material Adverse Effect (as defined below), or would
reasonably be expected to have a prospective Material Adverse
Effect; and, since the respective dates as of which information is
given in the Registration Statement and the Pricing Prospectus,
there has not been any change in the capital stock or long-term
debt of the Company or any of its Designated Subsidiaries or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, shareholders’ equity or
results of operations of the Company and its Designated
Subsidiaries, otherwise than as set forth or contemplated in the
Pricing Prospectus; the subsidiaries of the Company, other than the
Designated Subsidiaries, considered in the aggregate as a single
subsidiary, do not constitute a “significant
subsidiary” as defined in Rule 1-02 of
Regulation S-X;
(g)
The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of
Georgia, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Pricing
Prospectus, and has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, or is subject to no liability or disability by
reason of the failure to be so qualified in any such jurisdiction,
except to the extent that the failure to be so qualified and in
good standing would not, individually or in the aggregate, have a
material adverse effect on the current or future financial
position, shareholders’ equity or results of operations of
the Company and its subsidiaries (a “Material Adverse
Effect”); and each of its Designated Subsidiaries has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation, with
power and authority (corporate and other) to own its properties and
conduct its business as described in the Pricing Prospectus, and
has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, or is
subject to no liability or disability by reason of the failure to
be so qualified or
-4-
be in good
standing in any such jurisdiction, except to the extent that the
failure to be so qualified and in good standing would not have a
Material Adverse Effect;
(h)
Each of the Company and its subsidiaries that is required to be
organized or licensed as an insurance company in its jurisdiction
of incorporation (including jurisdictions outside of the United
States) (each an “Insurance Subsidiary”) has all
necessary consents, licenses, authorizations, approvals,
exemptions, orders, certificates and permits (collectively, the
“Consents”) of and from, and has made all filings and
declarations (collectively, the “Filings”) with, all
insurance regulatory authorities, all Federal, state, local and
other governmental authorities (including, without limitation, the
Nebraska Department of Insurance and the New York Insurance
Department), all self-regulatory organizations and all courts and
other tribunals, necessary to own, lease, license and use its
properties and assets and to conduct its business, except where the
failure to have such Consents or to make such Filings would not,
individually or in the aggregate, have a Material Adverse Effect;
all such Consents and Filings are in full force and effect, the
Company and its Insurance Subsidiaries are in compliance with such
Consents and neither the Company nor any of its Insurance
Subsidiaries has received any notice of any inquiry, investigation
or proceeding that would reasonably be expected to result in the
suspension, revocation or limitation of any such Consent or
otherwise impose any limitation on the conduct of the business of
the Company or any of its respective Insurance Subsidiaries, except
as set forth in the Prospectus or except as any such failure to be
in full force and effect, failure to be in compliance with,
suspension, revocation or limitation would not, individually or in
the aggregate, have a Material Adverse Effect; each of the Company
and its Insurance Subsidiaries is in compliance with, and conducts
its businesses in conformity with, all applicable insurance laws
and regulations, except where the failure to do so comply or
conform would not, individually or in the aggregate, have a
Material Adverse Effect. Without limiting the foregoing, each of
the Insurance Subsidiaries has made all Filings pursuant to, and
has obtained all Consents required of all applicable insurance laws
and regulations in connection with the issuance and sale of the
Securities;
(i)
The 2008 statutory annual statements of each Insurance Subsidiary
and the statutory balance sheets and income statements included in
such statutory annual statements together with related schedules
and notes have been prepared, in all material respects, in
conformity with statutory accounting principles and practices
required or permitted by the appropriate insurance regulator of the
jurisdiction of domicile of each such Insurance Subsidiary, and
such statutory accounting principles and practices have been
applied on a consistent basis throughout the periods involved,
except as may otherwise be indicated therein or in the notes
thereto, and present fairly, in all material respects, the
statutory financial position of such Insurance Subsidiaries as of
the dates thereof, and the statutory basis results of operations of
such Insurance Subsidiaries for the periods covered
thereby;
(j)
The Company has an authorized capitalization as set forth in the
Pricing Prospectus and all of the issued shares of capital stock of
the Company
-5-
have been
duly and validly authorized and issued and are fully paid and
non-assessable; and all of the issued shares of capital stock of
each 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;
(k)
Except as disclosed in the Pricing Prospectus, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to
file a registration statement under the Act with respect to any
securities of the Company or to require the Company to include such
securities in the securities registered pursuant to the
Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the Company
under the Act;
(l)
The Securities have been duly authorized and, when issued and
delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the indenture to be dated as of May 21, 2009 (as
supplemented, the “Indenture”) between the Company and
The Bank of New York Mellon Trust Company, N.A., as Trustee (the
“Trustee”), under which they are to be issued, which is
substantially in the form filed as an exhibit to the Registration
Statement; the Indenture has been duly authorized and duly
qualified under the Trust Indenture Act and, when executed and
delivered by the Company and the Trustee, will constitute a valid
and legally binding instrument, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to
or affecting creditors’ rights and to general equity
principles; and the Securities and the Indenture will conform to
the descriptions thereof in the Pricing Disclosure Package and the
Prospectus;
(m)
The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture
and this Agreement and the consummation of the transactions herein
and therein contemplated (i) will not conflict with or result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the
Company or any its Designated Subsidiaries is a party or by which
the Company or any of its subsidiaries is bound or to which any of
the property or assets of the Company or any of its Designated
Subsidiaries is subject, (ii) will not result in any violation
of the provisions of the Articles of Incorporation or By-laws of
the Company or the organizational documents of any of its
Designated Subsidiaries, (iii) will not result in any
violation of any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company or any of its Designated Subsidiaries or any of their
properties, except, with respect to clauses (i) and (iii), for
such conflicts, breaches, violations or defaults which would not,
individually or in the aggregate, have a Material Adverse Effect
and would not adversely affect the validity or performance of the
Company’s obligations under the Securities, the Indenture and
this Agreement; and no consent, approval, authorization, order,
registration or qualification of or with any
-6-
such court
or governmental agency or body is required for the issue and sale
of the Securities or the consummation by the Company of the
transactions contemplated by this Agreement or the Indenture except
such as have been obtained under the Act and the Trust Indenture
Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the
Securities by the Underwriters;
(n)
Neither the Company nor any of its Designated Subsidiaries is
(i) in violation of its Articles of Incorporation or By-laws
or the other organizational documents or (ii) in default in
the performance or observance of any obligation, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound, except,
with respect to clause (ii), for such defaults that would not,
individually or in the aggregate, have a Material Adverse
Effect;
(o)
The statements set forth in the Pricing Prospectus and Prospectus
under the captions “Description of Debt Securities” and
“Description of the Notes”, insofar as they purport to
constitute a summary of the terms of the Securities, and under the
captions “Plan of Distribution” and
“Underwriting”, insofar as they purport to describe the
provisions of the laws and documents referred to therein, are
accurate, complete and fair in all material respects;
(p)
Other than as set forth in the Pricing Prospectus, there are no
legal or governmental proceedings pending to which the Company or
any of its Designated Subsidiaries is a party or of which any
property of the Company or any of its Designated Subsidiaries is
the subject which, would be reasonably expected to have,
individually or in the aggregate, a Material Adverse Effect or
would materially and adversely affect the ability of the Company to
perform its obligations under the Securities, the Indenture and
this Agreement; and, to the best of the Company’s knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others, other than as set forth in the
Pricing Prospectus;
(q)
The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof,
will not be an “investment company”, as such term is
defined in the Investment Company Act of 1940, as amended (the
“Investment Company Act”);
(r)
(A) (i) At the time of filing the Registration Statement,
(ii) at the time of the most recent amendment thereto for the
purposes of complying with Section 10(a)(3) of the 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), and (iii) at the time
the Company or any person acting on its behalf (within the meaning,
for this clause only, of Rule 163(c) under the Act) made any offer
relating to the Securities in reliance on the exemption of
Rule 163 under the Act, the Company was a “well-known
seasoned issuer” as defined in Rule 405 under the Act;
and (B) at the earliest time after the
-7-
filing of
the Registration Statement that the Company or another offering
participant made a bona fide offer (within the meaning of
Rule 164(h)(2) under the Act) of the Securities, the Company
was not an “ineligible issuer” as defined in
Rule 405 under the Act;
(s)
KPMG LLP, who have audited certain financial statements of the
Company and its subsidiaries, and have audited the effectiveness of
the Company’s internal control over financial reporting, are
independent public accountants as required by the Act and the rules
and regulations of the Commission thereunder;
(t)
The Company maintains a system of internal control over financial
reporting (as such term is defined in Rule 13a-15(f) under the
Exchange Act) that complies with the requirements of the Exchange
Act and has been designed by the Company’s principal
executive officer and principal financial officer, or under their
supervision, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with generally
accepted accounting principles. The Company’s internal
control over financial reporting is effective and the Company is
not aware of any material weaknesses in its internal control over
financial reporting;
(u)
Since the date of the latest audited financial statements included
or incorporated by reference in the Pricing Prospectus, there has
been 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;
(v)
The Company maintains disclosure controls and procedures (as such
term is defined in Rule 13a-15(e) under the Exchange Act) that
comply with the requirements of the Exchange Act; such disclosure
controls and procedures have been designed to ensure that material
information relating to the Company and its subsidiaries is made
known to the Company’s principal executive officer and
principal financial officer by others within those entities; and
such disclosure controls and procedures are effective;
(w)
Neither the Company nor any of its subsidiaries nor, to the best
knowledge of the Company, any director, officer, agent, employee or
other person associated with or acting on behalf of the Company or
any of its subsidiaries has (i) used any corporate funds for
any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; (ii) made any direct
or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; (iii) violated or
is in violation of any provision of the Foreign Corrupt Practices
Act of 1977; or (iv) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment;
(x)
The operations of the Company and its subsidiaries are and have
been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and
Foreign Transactions Reporting
-8-
Act of
1970, as amended, the money laundering statutes of all
jurisdictions, the rules and regulations thereunder and any related
or similar rules, regulations or guidelines, issued, administered
or enforced by any governmental agency (collectively, the
“Money Laundering Laws”) and no action, suit or
proceeding by or before any court or governmental agency, authority
or body or any arbitrator involving the Company or any of its
subsidiaries with respect to the Money Laundering Laws is pending
or, to the best knowledge of the Company, threatened;
and
(y)
None of the Company, any of its subsidiaries or, to the knowledge
of the Company, any director, officer, agent, employee or affiliate
of the Company or any of its subsidiaries is currently subject to
any U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Department of the Treasury
(“OFAC”); 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, for the purpose of financing the activities of any
person currently subject to any U.S. sanctions administered by
OFAC.
2. Subject
to the terms and conditions herein set forth, the Company agrees to
issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from
the Company, at a purchase price of 99.35% of the principal amount
thereof, plus accrued interest, if any, from May 21, 2009 to
the Time of Delivery (as defined below) hereunder, the principal
amount of Securities set forth opposite the name of such
Underwriter in Schedule I hereto.
3. Upon
the authorization by you of the release of the Securities, the
several Underwriters propose to offer the Securities for sale upon
the terms and conditions set forth in the Prospectus.
4. (a) The
Securities to be purchased by each Underwriter hereunder will be
represented by one or more definitive global Securities in
book-entry form which will be deposited by or on behalf of the
Company with The Depository Trust Company (“DTC”) or
its designated custodian. The Company will deliver the Securities
to the Representatives, for the account of each Underwriter,
against payment by or on behalf of such Underwriter of the purchase
price therefor by wire transfer of Federal (same-day) funds to the
account specified by the Company to the Representatives at least
forty-eight hours in advance. The Company will cause the
certificates representing the Securities to be made available to
the Representatives for checking at least twenty-four hours prior
to the Time of Delivery (as defined below) at the office of DTC or
its designated custodian (the “Designated Office”). The
time and
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