EXHIBIT 4.10
Anthem, Inc.
____% Subordinated Debentures due 2006
_______________
[DATE]
[NAME OF REMARKETING AGENT]
___________________________
___________________________
Ladies and Gentlemen:
[NAME OF REMARKETING AGENT], a ___________________ (the "Remarketing
Agent"), is undertaking to remarket ____% Subordinated Debentures due 2006 (the
"Debentures"), issued by Anthem, Inc., an Indiana corporation (the "Company"),
pursuant to the Purchase Contract Agreement between the Company and The Bank of
New York, as purchase contract agent (the "Purchase Contract Agent"), dated as
of ____________, 2001 (the "Purchase Contract Agreement").
The Debentures have been issued pursuant to, and are governed by, the
Indenture dated as of _________, 2001, (the "Base Indenture") between the
Company, as issuer, and The Bank of New York, as trustee (the "Trustee"), as
supplemented by the First Supplemental Indenture, dated as of ____________, 2001
(the "Supplemental Indenture No. 1," and, together with the Base Indenture and
all other amendments and supplements thereto in effect on the date hereof, the
"Indenture"), between the Company and the Trustee.
Each Debenture was issued as part of an equity security unit (the
"Unit") that initially also included a contract (a "Purchase Contract") under
which the holder will purchase from the Company on ____________, 2004, [insert
stock purchase date] a number of shares (the "Issuable Common Stock") of common
stock, par value $0.01 per share, of the Company (the "Common Stock") equal to
the Settlement Rate as set forth in the Purchase Contract Agreement. In
accordance with the terms of the Purchase Contract Agreement, the Debentures
constituting a part of the Units have been pledged by the Purchase Contract
Agent, on behalf of the holders of the Units, to The Chase Manhattan Bank, as
collateral agent (the "Collateral Agent"), pursuant to the Pledge Agreement,
dated as of ____________, 2001 (the "Pledge Agreement"), among the Company, the
Purchase Contract Agent, the Collateral Agent and The Chase Manhattan Bank, as
custodial agent (the "Custodial Agent") and securities intermediary (the
"Securities
Intermediary"), to secure the holders' obligation to purchase the Issuable
Common Stock under the Purchase Contracts.
Capitalized terms used and not defined in this Agreement shall have
the meanings set forth in the Purchase Contract Agreement, the Pledge Agreement,
the Indenture and the Underwriting Agreement among the Company, Anthem Insurance
Companies, Inc. ("Anthem Insurance") and the several underwriters listed
therein, dated as of ___, 2001, entered into in connection with the initial
public offering of the Units (the "Underwriting Agreement"), as the case may be.
The Remarketing (as defined below) of the Debentures is provided for
in the Purchase Contract Agreement. As used in this Agreement, "Transaction
Documents" shall mean, collectively, the Purchase Contract Agreement, the
Indenture, the Pledge Agreement and this Agreement; the term "Remarketed
Debentures" means the Debentures subject to the Remarketing as notified to the
Remarketing Agent by the Purchase Contract Agent and the Custodial Agent, on or
prior to the first Business Day prior to a Remarketing Date; the term
"Remarketing Procedures" means the procedures in connection with the Remarketing
of the Debentures, as described herein and in the Purchase Contract Agreement
and the Pledge Agreement; the term "Remarketing" means the remarketing of the
Remarketed Debentures pursuant to the Remarketing Procedures; the term
"Remarketing Date" means the third Business Day immediately preceding
____________, 2004 [insert remarketing date]; and the term "Instruments" means
the Remarketed Debentures, the Purchase Contracts, the Units, the Debentures and
the Issuable Common Stock.
SECTION 1. Appointment and Obligations of the Remarketing Agent.
(a) The Company hereby appoints _________________________ as
exclusive Remarketing Agent and Reset Agent, and _________________________
hereby accepts such appointment, for the purpose of (i) Remarketing
Remarketed Debentures on behalf of the holders thereof and (ii) performing
such other duties as are assigned to the Remarketing Agent and Reset Agent
in the Remarketing Procedures, all in accordance with and pursuant to the
Remarketing Procedures.
(b) The Remarketing Agent agrees (i) to use commercially
reasonable best efforts to remarket the Remarketed Debentures tendered or
deemed tendered to the Remarketing Agent in the Remarketing, (ii) to notify
the Company, the Depositary and the Trustee promptly of the Reset Rate and
(iii) to establish the Reset Rate and carry out such other duties as are
assigned to the Remarketing Agent and Reset Agent in the Remarketing
Procedures, all in accordance with the provisions of the Remarketing
Procedures.
(c) On the Remarketing Date, the Remarketing Agent shall use
its reasonable best efforts to remarket, at a price equal to 100.5% of the
Remarketing Value, the Remarketed Debentures tendered or deemed tendered
for purchase.
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(d) If, as a result of the efforts described in Section l(b),
the Remarketing Agent determines, after consultation with the Company, that
it will be able to remarket all Remarketed Debentures tendered or deemed
tendered for purchase at a price of 100.5% of the Remarketing Value prior
to 4:00 p.m., New York City time, on the Remarketing Date, the Remarketing
Agent, after consultation with the Company, shall (i) determine the Reset
Rate that will enable it to remarket all Remarketed Debentures tendered or
deemed tendered for Remarketing and (ii) commit to purchase, on a third-day
settlement basis, and on the third Business Day following the Remarketing
Date (the "Remarketing Closing Date"), shall purchase, the Agent-purchased
Treasury Consideration.
(e) If the Remarketing Agent cannot remarket the Debentures on
the Remarketing Date, the Remarketing Agent may continue to attempt to
remarket the Debentures until the Stock Purchase Date in accordance with
the Remarketing Procedures (each such remarketing, the "Subsequent
Remarketing"), provided that (i) the notice of any Subsequent Remarketing
cannot be given until the Failed Remarketing notice has been published in
accordance with the Remarketing Procedures in respect of any immediately
preceding Failed Remarketing and (ii) the Remarketing Closing Date in
respect of any Subsequent Remarketing must fall no later than on the
Business Day immediately preceding the Stock Purchase Date.
(f) If, by 4:00 p.m., New York City time, on a Remarketing Date
(including a Remarketing Date of any Subsequent Remarketing), the
Remarketing Agent is unable to remarket all Remarketed Debentures tendered
or deemed tendered for purchase, a failed Remarketing ("Failed
Remarketing") shall be deemed to have occurred, and the Remarketing Agent
shall, on such date, so advise by telephone the Depositary, the Purchase
Contract Agent, the Trustee, the Company and the Collateral Agent.
(g) On the third Business Day following any Failed Remarketing,
the Remarketing Agent shall remit (i) to the Custodial Agent the Remarketed
Debentures comprised of the Separate Debentures, and (ii) to the Collateral
Agent the balance of the Remarketed Debentures.
(h) If by 4:00 p.m., New York City time, on the Business Day
immediately preceding _________, 2004 [Insert stock purchase date], the
Remarketing Agent, in spite of using its commercially reasonable best
efforts, fails to remarket all of the Debentures tendered or deemed
tendered for purchase, the "Last Failed Remarketing" will be deemed to have
occurred. In this case, the Remarketing Agent shall so advise by telephone
the Depositary, the Purchase Contract Agent, the Trustee, the Company and
the Collateral Agent. On the third Business Day following the Last Failed
Remarketing, the Remarketing Agent shall remit (i) to the Custodial Agent
the Remarketed Debentures comprised of the Separate Debentures and (ii) to
the Collateral Agent the balance of the Remarketed Debentures.
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(i) By approximately 4:30 p.m., New York City time, on the
Remarketing Date, provided that there has not been a Failed Remarketing
(including the Last Failed Remarketing), the Remarketing Agent shall advise
by telephone the Company, the Purchase Contract Agent, the Depositary and
the Trustee of the Reset Rate determined in the Remarketing and the number
of Remarketed Debentures sold in the Remarketing.
(j) In accordance with the Depositary's normal procedures, on
the Remarketing Closing Date, the transactions described above with respect
to each Debenture tendered for purchase and sold in the Remarketing shall
be executed through the Depositary, and the accounts of the respective
Depositary participants shall be debited and credited and such Debentures
delivered by book-entry as necessary to effect purchases and sales of such
Debentures.
(k) On the Remarketing Closing Date, the tender and settlement
procedures set in this Section 1, including provisions for payment by
purchasers of the Debentures in the Remarketing, shall be subject to
modification to the extent required by the Depositary or if the
Depositary's book-entry system is no longer available for the Debentures at
the time of the Remarketing, to facilitate the tendering and remarketing of
the Debentures in certificated form. In addition, the Remarketing Agent may
modify the settlement procedures set forth herein in order to facilitate
the settlement process.
(l) On the Remarketing Closing Date, the Remarketing Agent shall
remit to the Collateral Agent through the Purchase Contract Agent the
Agent-purchased Treasury Consideration.
(m) On the Remarketing Closing Date, the Remarketing Agent shall
retain as a remarketing fee an amount not exceeding 25 basis points (.25%)
of the total proceeds from the sale of the Remarketed Debentures and shall
remit (i) the remaining portion of the balance attributable to the Separate
Debentures to the Custodial Agent for distribution to the holders of the
Separate Debentures that were remarketed and (ii) the remaining portion of
the balance to the Purchase Contract Agent for distribution to the holders
of the Remarketed Debentures in accordance with the Purchase Contract
Agreement.
SECTION 2. Representations, Warranties and Agreements of the Company.
---------------------------------------------------------
The Company represents, warrants and agrees (i) on and as of the date hereof,
(ii) on and as of the date the Prospectus or other Remarketing Materials (each
as defined in Section 2(a) below) are first distributed in connection with the
Remarketing (the "Commencement Date") and (iii) on and as of the Remarketing
Date, that:
(a) [IN THE EVENT REGISTRATION IS REQUIRED, INSERT THE
FOLLOWING: A registration statement on Form S-3 and amendments thereto have
been prepared by the Company in conformity with the requirements of the
Securities Act of 1933, as amended (the "Securities Act"), and the rules
and regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") and filed
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with the Commission under the Securities Act, and such registration
statement and any post-effective amendments thereto, each in the form
heretofore delivered to the Remarketing Agent, have been declared effective
by the Commission in such form. As used in this Agreement, "Effective Time"
means the date and time as of which such registration statement, or the
most recent post-effective amendment thereto, if any, was declared
effective by the Commission; "Effective Date" means the date of the
Effective Time of such registration statement; Preliminary Prospectus means
each prospectus included in such registration statement, or amendment
thereto, before it became effective under the Securities Act and any
prospectus filed by the Company with consent of the Remarketing Agent
pursuant to Rule 424(a) of the Rules and Regulations; "Registration
Statement" means such registration statement, as amended at its Effective
Time, including documents incorporated by reference therein at such time
and, if applicable, all information contained in the final prospectus filed
with the Commission pursuant to Rule 424(b) of the Rules and Regulations,
including any information deemed to be part of such Registration Statement
as of the Effective Time pursuant to paragraph (b) of Rule 430A of the
Rules and Regulations; and "Prospectus" means such final prospectus, as
first filed pursuant to Rule 424(b) of the Rules and Regulations. Reference
made herein to any Preliminary Prospectus, the Prospectus or any other
information furnished by the Company to the Remarketing Agent for
distribution to investors in connection with the Remarketing (the
"Remarketing Materials") shall be deemed to refer to and include any
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act as of the date of such Preliminary Prospectus or
the Prospectus, as the case may be, or, in the case of Remarketing
Materials, referred to as incorporated by reference therein, and any
reference to any amendment or supplement to any Preliminary Prospectus, the
Prospectus or the Remarketing Materials shall be deemed to refer to and
include any document filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), after the date of such Preliminary Prospectus
or the Prospectus incorporated by reference therein pursuant to Item 12 of
Form S-3 or, if so incorporated, after the date of the Remarketing
Materials, as the case may be; and any reference to any amendment to the
Registration Statement shall be deemed to include any annual report of the
Company filed with the Commission pursuant to Section 13(a) or 15(d) of the
Exchange Act after the Effective Time that is incorporated by reference in
the Registration Statement.] [IN THE EVENT REGISTRATION IS NOT REQUIRED,
INSERT THE FOLLOWING: The Company has provided to the Remarketing Agent,
for use in connection with the remarketing of the Debentures, a preliminary
remarketing memorandum and remarketing memorandum, [AND DESCRIBE OTHER
MATERIALS IF ANY]. Such remarketing memorandum (including the documents
incorporated or deemed incorporated by reference therein) is hereafter
called, collectively, the "Prospectus," such preliminary marketing
memorandum (including the documents incorporated or deemed incorporated by
reference therein) is hereafter called a "Preliminary Prospectus" and any
other information finished by the Company to the Remarketing Agent for
distribution to investors in connection with the Remarketing is hereafter
called the "Remarketing Materials")]. The Company hereby consents to the
use of the Prospectus, the Preliminary Prospectus and the Remarketing
Materials in connection with the Remarketing.
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(b) [(i)] The [Registration Statement conforms, and the
Prospectus, the Preliminary Prospectus and the Remarketing Materials, and
any further amendments or supplements to the Registration Statement, the
Prospectus or the Remarketing Materials, will conform, in all material
respects to the requirements of the Securities Act and the Rules and
Regulations and the Registration Statement, the] Prospectus and the
Remarketing Materials do not and will not, [as of the Effective Date (as to
the Registration Statement and any amendment thereto), as of the applicable
filing date (as to the Prospectus and any amendment or supplement thereto)]
[as of their respective dates] and as of the Commencement Date, the
Remarketing Date and the Remarketing Closing Date contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided 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 the Remarketing Agent
expressly for use therein[;
(ii) the Indenture conforms in all material respects to the
requirements of the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the applicable rules and regulations thereunder; and
(iii) the Commission has not issued any order preventing or
suspending the use or effectiveness of the Registration Statement, any
Preliminary Prospectus, the Prospectus or the Remarketing Materials].
(c) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the case
may be, conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents, as of
their respective effective or filing dates, contained an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
and any further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the case
may be, will conform in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not, as of their
respective effective or filing dates, 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 apply only
to documents so filed and incorporated by reference during the period that
a prospectus relating to the Units is required to be delivered in
connection with sales of such Units by any underwriters (such period being
hereinafter sometimes referred to as the "prospectus delivery period"), and
provided further, 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 the Remarketing Agent
expressly for use therein.
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(d) Neither the Company nor Anthem Insurance nor any of their
respective subsidiaries has sustained since the date of the latest audited
financial statements included in the Prospectus or the Remarketing
Materials any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus or the Remarketing
Materials; and, since the respective dates as of which information is given
in [the Registration Statement,] the Prospectus or the Remarketing
Materials, there has not been any (i) material addition, or development
involving a prospective material addition, to Anthem Insurance's liability
for future policy benefits, policyholder account balances and other claims,
other than in the ordinary course of business, (ii) material decrease in
the surplus of Anthem Insurance or material change in the capital stock or
other ownership interest of the Company, Anthem Insurance or any of their
respective subsidiaries or any material increase in the long-term debt of
the Company, Anthem Insurance and their respective subsidiaries, considered
as a whole; or (iii) material adverse change, or development involving a
prospective material adverse change, in or affecting the general affairs,
management, financial position, reserves, surplus, equity or results of
operations (in each case considered either on a statutory accounting or
U.S. generally accepted accounting principles ("GAAP") basis, as
applicable) of the Company, Anthem Insurance and their respective
subsidiaries considered as a whole ("Material Adverse Effect"), otherwise
than as set forth or contemplated in the Prospectus and the Remarketing
Materials;
(e) Each of the Company, Anthem Insurance and their respective
Material Subsidiaries (as hereinafter defined) has good and marketable
title in fee simple to all real property and good and marketable title to
all personal property owned by it, in each case free and clear of all
liens, encumbrances and defects, except such as are described in the
Prospectus and the Remarketing Materials or such as do not materially
affect the value of such property and do not interfere with the use made
and proposed to be made of such property by the Company, Anthem Insurance
or any of their respective Material Subsidiaries, and any real property and
buildings held under lease by the Company, Anthem Insurance or any of their
respective Material Subsidiaries are held under valid, subsisting and
enforceable leases with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property and
buildings by the Company, Anthem Insurance or any of their respective
Material Subsidiaries (for purposes of this Agreement, "Material
Subsidiary" means, at any time, (i) each of Anthem Midwest, Inc., Anthem
East, Inc. and Anthem West, Inc. and (ii) any subsidiary which, together
with its subsidiaries, has either assets, revenues from operations or
income from continuing operations that exceed 5% of the combined assets,
combined revenues from operations or combined income from continuing
operations of the Company and Anthem Insurance and their subsidiaries taken
as a whole);
(f) The Company has been duly incorporated and is validly
existing as a corporation under the laws of the State of Indiana, with
power and authority (corporate and other) to own its properties and conduct
its business as described in the Prospectus and the Remarketing Materials;
Anthem Insurance has been duly incorporated
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and is validly existing as a stock insurance company in good standing under
the laws of the State of Indiana, with power and authority (corporate and
other) to own its properties and conduct its business as described in the
Prospectus and the Remarketing Materials; each of the Company and Anthem
Insurance 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 material
liability or disability by reason of the failure to be so qualified and in
good standing in any such jurisdiction; and each of their respective
Material Subsidiaries has been duly organized and is validly existing as a
corporation, limited liability company or partnership, as applicable, and,
to the extent such concept is applicable, is in good standing under the
laws of its jurisdiction of organization, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Prospectus and the Remarketing Materials; and each of
their respective Material Subsidiaries is duly qualified to do business as
a foreign corporation, limited liability company or partnership, as
applicable, for the transaction of business and, to the extent such concept
is applicable, is in good standing under the laws of each other
jurisdiction in which its ownership or lease of property or the conduct of
its business requires such qualification and good standing, or is subject
to no material liability or disability by reason of the failure to be so
qualified and in good standing in any such jurisdiction;
(g) The Company has an authorized capitalization as set forth
and described in the Prospectus and the Remarketing Materials; Anthem
Insurance has an authorized capitalization of 500,000,000 shares of common
stock, par value $1.00; and all of the issued shares of capital stock or
other ownership interests of each of their respective Material Subsidiaries
have been duly and validly authorized and issued, are fully paid and
nonassessable and (except as described in the Prospectus and the
Remarketing Materials) are owned directly or indirectly by the Company or
Anthem Insurance, as applicable, free and clear of all liens, encumbrances,
equities or claims; the shares of the Issuable Common Stock have been duly
and validly authorized and reserved for issuance and, when issued and
delivered in accordance with the provisions of the Purchase Contracts, the
Purchase Contract Agreement and the Pledge Agreement, will be duly and
validly issued, fully paid and nonassessable and will conform to the
description of the Common Stock contained in the Prospectus and the
Remarketing Materials or to any amended or supplemented description of the
Common Stock contained in a then effective report or registration statement
filed pursuant to the Exchange Act; and the issuance of the Issuable Common
Stock is not subject to any preemptive or similar rights;
(h) Each of Anthem Insurance and each of its and the Company's
respective subsidiaries that is required to be organized or licensed as an
insurance, healthcare, HMO or health care management company or holding
company in respect thereof in its jurisdiction of incorporation (an
"Insurance or Healthcare Subsidiary") is duly organized and licensed as
such in its respective jurisdiction of incorporation and is duly licensed
or authorized as such in each other jurisdiction where it is required to be
so licensed or authorized to conduct its business, except where the failure
to be so licensed or authorized could not reasonably be expected to have a
Material Adverse Effect; except
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as otherwise described in the Prospectus and the Remarketing Materials,
each of Anthem Insurance and each Insurance or Healthcare Subsidiary has
all other approvals, orders, consents, authorizations, licenses,
certificates, permits, registrations and qualifications (collectively, the
"Approvals") of and from all insurance or healthcare related regulatory
authorities and from the Blue Cross Blue Shield Association ("BCBSA") to
conduct its business, except where the failure to have such Approvals could
not reasonably be expected to have a Material Adverse Effect; there is no
pending or, to the knowledge of the Company and Anthem Insurance,
threatened action, suit, proceeding or investigation that could reasonably
be expected to lead to the revocation, termination or suspension of any
such Approval, the revocation, termination or suspension of which would
have, individually or in the aggregate, a Material Adverse Effect; each of
Anthem Insurance and each Insurance or Healthcare Subsidiary is in
compliance with all license agreements with BCBSA currently in effect (each
a "BCBS License") that it is a party to; and, to the knowledge of the
Company and Anthem Insurance, no insurance or healthcare related regulatory
agency or body has issued any order or decree impairing, restricting or
prohibiting the payment of dividends by any Insurance or Healthcare
Subsidiary to its parent, except as described in the Prospectus and the
Remarketing Materials;
(i) Each of the Company, Anthem Insurance and each of their
respective subsidiaries has all necessary Approvals of and from, and has
made all filings, registrations and declarations (collectively, the
"Filings") with, all insurance regulatory authorities, all Federal, state,
local and other governmental authorities, all self-regulatory organizations
and all courts and other tribunals and the BCBSA, necessary to own, lease,
license and use its properties and assets and to conduct its business in
the manner described in the Prospectus and the Remarketing Materials,
except where the failure to do so could not reasonably be expected to have
a Material Adverse Effect; each of the Company and Anthem Insurance and
each of their respective subsidiaries is in compliance with all applicable
laws, rules, regulations, orders, by-laws and similar requirements,
including in connection with registrations or memberships in self-
regulatory organizations and the BCBSA, and all such Approvals and Filings
are in full force and effect, except where the failure to be so could not
reasonably be expected to have a Material Adverse Effect, and neither the
Company nor Anthem Insurance nor any of their respective subsidiaries has
received any notice of any event, inquiry, investigation or proceeding that
would reasonably be expected to result in the suspension, revocation or
material limitation of any such Approval or otherwise impose any material
limitation on the conduct of the business of the Company, Anthem Insurance
or any of their respective subsidiaries, except as described in the
Prospectus and the Remarketing Materials;
(j) Each of Anthem Insurance and each Insurance or Healthcare
Subsidiary is in compliance with and conducts its businesses in conformity
with all applicable insurance or healthcare related laws and regulations of
its respective jurisdiction of incorporation and the insurance or
healthcare related laws and regulations of other jurisdictions which are
applicable to it, except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect;
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(k) The entry into and compliance by the Company with all of the
provisions of this Agreement and the Transaction Documents and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under the BCBS Licenses or under any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company, Anthem Insurance or any of their
respective subsidiaries is a party or by which the Company, Anthem
Insurance or any of their respective subsidiaries is bound or to which any
of the property or assets of the Company, Anthem Insurance or any of their
respective subsidiaries is subject, or which affects the validity,
performance or consummation of the Instruments, the Remarketing or the
transactions contemplated by this Agreement or the Transaction Documents,
nor will such actions result in any violation of the provisions of the
Articles of Incorporation or By-Laws or similar organizational documents of
the Company, Anthem Insurance or any of their respective subsidiaries or
any statute or any order, rule or regulation of any court or insurance
regulatory agency or other governmental agency or body having jurisdiction
over the Company, Anthem Insurance or any of their respective subsidiaries
or any of their properties, in each case the effect of which (other than a
violation of (x) the Articles of Incorporation or By-Laws or similar
organizational documents of the Company, Anthem Insurance or any of their
respective Material Subsidiaries or (y) the BCBS Licenses), individually or
in the aggregate, would be either to affect the validity of the Instruments
or their respective issuance or the validity of this Agreement or the
Transaction Documents or to adversely affect the consummation of the
Remarketing or other transactions contemplated hereby or by the Transaction
Documents or to have a Material Adverse Effect;
(l) All Filings and Approvals of or with any court, insurance
regulatory agency or governmental agency or body of the United States or
any state thereof required in connection with the entry into and compliance
by the Company with all of the provisions of this Agreement and the
Transaction Documents and the consummation of the transactions herein and
therein contemplated have been made or obtained and all such Filings and
Approvals are in full force and effect, provided that neither the Company
nor Anthem Insurance makes any representation or warranty as to state
securities or Blue Sky laws in connection with the Remarketing; and all
other Filings and Approvals of or with any court, insurance regulatory
agency or other governmental agency or body or the BCBSA required to be
obtained or made in connection with the consummation by the Company of the
transactions contemplated by this Agreement and the Transaction Documents
have been so obtained or made, and are in full force and effect, except as
described in the Prospectus and the Remarketing Materials;
(m) Other than as described or contemplated in the Prospectus
and the Remarketing Materials, there are no legal or governmental
proceedings pending to which the Company, Anthem Insurance or any of their
respective subsidiaries is a party or to which any property of the Company,
Anthem Insurance or any of their respective subsidiaries is subject which,
if determined adversely to the Company, Anthem Insurance or any of their
respective subsidiaries, could reasonably be expected to have, individually
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or in the aggregate, a Material Adverse Effect; and, to the best knowledge
of the Company and Anthem Insurance, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(n) Neither the Company, Anthem Insurance nor any of
their respective subsidiaries is (i) in violation of any of its Articles of
Incorporation or By-Laws or other organizational instruments, or (ii) in
default in the performance or observance of any obligation, agreement,
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, in the
case of clause (ii), where such default could not reasonably be expected to
have a Material Adverse Effect;
(o) The statements set forth in the Prospectus and the
Remarketing Materials under the captions ["Description of the Units",
insofar as they purport to constitute a summary of the terms of the
Instruments and the Transaction Documents, and "Description of Capital
Stock", insofar as they purport to constitute a summary of the terms of the
Stock, and under the captions "Risk Factors - We are using the Blue Cross
and Blue Shield names and marks as identifiers for our products and
services under licenses from the Blue Cross Blue Shield Association. The
termination of these license agreements could adversely affect our
business, financial condition and results of operations", "Risk Factors -
Additional risks relevant to you as a holder of the units", "The Business
of Anthem - the Blue Cross Blue Shield License", "Legal and Regulatory
Matters", "U.S. Federal Income Tax Consequences" and "Underwriting"],
insofar as they purport to describe the provisions of the laws and
documents referred to therein, are accurate, complete and fair;
(p) The consolidated financial statements of the
Company and its subsidiaries, together with the related notes and
schedules, set forth in [the Registration Statement,] the Prospectus and
the Remarketing Materials [comply in all material respects with the
requirements of the Securities Act and] present fairly in all material
respects the financial position, the results of operations and the changes
in cash flows of such entities in conformity with GAAP at the respective
dates or for the respective periods to which they apply; and such
statements and related notes and schedules, if any, have been prepared in
accordance with GAAP consistently applied throughout the periods involved
except for any normal year-end adjustments and except as described therein;
(q) Neither the Company, Anthem Insurance nor any of
their respective subsidiaries is and, after giving effect to the
Remarketing and the consummation of the transactions contemplated herein
and in the Remarketing Procedures, will be an "investment company", as such
term is defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act"), and the rules and regulations thereunder;
11
(r) Ernst & Young LLP, who have certified the
consolidated financial statements of the Company and its subsidiaries, are
independent public accountants as required by the Securities Act and the
rules and regulations of the Commission thereunder;
[(s) are no contracts or documents of a character
required to be described in the Registration Statement or the Prospectus or
to be filed as an exhibit to the Registration Statement which are not
described or filed as required by the Securities Act, the Trust Indenture
Act and the rules and regulations of the Commission thereunder;]
(t) The Units have been duly authorized, executed,
authenticated, issued and delivered and constitute valid and legally
binding obligations of the Company, enforceable against the Company in
accordance with their 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; the
Units are in the form contemplated by, and are entitled to the benefits of,
the Purchase Contract Agreement; and the Units conform in all material
respects to the description thereof contained in the Prospectus and the
Remarketing Materials;
(u) The Purchase Contract Agreement has been duly
authorized, executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Purchase Contract Agent,
constitutes a valid and legally binding obligation of the Company,
enforceable against the Company 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 Purchase Contract Agreement conforms in
all material respects to the description thereof contained in the
Prospectus and the Remarketing Materials;
(v) The Purchase Contracts underlying the Units have
been duly authorized, issued and delivered by the Company and constitute
valid and legally binding obligations of the Company, enforceable against
the Company in accordance with their 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 Purchase Contracts conform in all material
respects to the description thereof contained in the Prospectus and the
Remarketing Materials;
(w) This Agreement has been duly authorized, executed
and delivered by the Company and constitutes a valid and legally binding
obligation of the Company enforceable against the Company 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 this
Agreement conforms in all material respects to the description thereof
contained in the Prospectus and the Remarketing Materials;
12
(x) The Pledge Agreement has been duly authorized,
executed and delivered by the Company and, assuming due authorization,
execution and delivery by the other parties thereto, constitutes a valid
and legally binding obligation of the Company, enforceable against the
Company 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; the Pledge Agreement conforms to the description thereof
contained in the Prospectus and the Remarketing Materials;
(y) The Pledge Agreement creates, as collateral
security for the performance when due by the holders from time to time of
the Units of their respective obligations under the Purchase Contracts
constituting a part of such Units, a legal, valid and perfected security
interest (as defined in the Uniform Commercial Code, as adopted and in
effect in the State of New York (the "New York UCC")) in favor of the
Collateral Agent for the benefit of the Company, in the right, title and
interest of such holders in the securities and other assets and interests
pledged to the Collateral Agent pursuant to the Pledge Agreement (the
"Pledged Securities");
(z) The Indenture has been duly authorized, executed
and delivered by the Company and, assuming due authorization, execution and
delivery by the Trustee, constitutes a valid and legally binding obligation
of the Company, enforceable against the Company 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; the Indenture has been duly
qualified under the Trust Indenture Act; and the Indenture conforms in all
material respects to the description thereof contained in the Prospectus
and the Remarketing Materials;
(aa) The Debentures have been duly authorized, executed,
authenticated, issued and delivered and constitute valid and legally
binding obligations of the Company, enforceable against the Company in
accordance with their 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; the
Debentures are in the form contemplated by, and are entitled to the
benefits of, the Indenture and conform in all material respects to the
description thereof contained in the Prospectus and the Remarketing
Materials; and
(bb) The Units are listed on the New York Stock Exchange
(the "NYSE") and the Issuable Common Stock has been approved for listing on
the NYSE and, upon notice of issuance, will be listed on the NYSE.
SECTION 3. Fees and Expenses. The Company covenants and agrees
-----------------
with the Remarketing Agent that the Company will pay or cause to be paid the
following: (i) the costs incident to the preparation, filing and printing of the
[Registration Statement,] Prospectus and any Remarketing Materials and any
amendments or supplements thereto; (ii) the costs of distributing the
[Registration Statement,] Prospectus and any Remarketing Materials and any
amendments or supplements thereto; (iii) any fees and expenses of qualifying the
Remarketed Debentures under
13
the securities laws of the several jurisdictions as provided in Section 4[(g)]
and of preparing, printing and distributing a Blue Sky memorandum (including
related fees and expenses of counsel to the Remarketing Agent); and (iv) all
other costs and expenses incident to the performance of the obligations of the
Company hereunder.
SECTION 4. Further Agreements of the Company. The Company
---------------------------------
agrees to use its reasonable best efforts:
(a) To prepare any registration statement or prospectus
and any amendment and supplemental amendment thereto, or if none is
required, any remarketing memorandum, including any preliminary remarketing
memorandum, in each case, in a form reasonably acceptable to the
Remarketing Agent, in connection with the Remarketing, and, if required, to
file any such prospectus pursuant to the Securities Act within the period
required by the Rules and Regulations; [to advise the Remarketing Agent,
promptly after either of them receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes effective
or any supplement to the Prospectus (or the Remarketing Materials) or any
amended Prospectus (or the Remarketing Materials) has been filed and to
furnish the Remarketing Agent with copies thereof;] to file all reports and
any definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus is required in connection with the
offering or sale of Remarketed Debentures; [to advise the Remarketing
Agent, after it receives notice thereof, of the issuance by the Commission
of any stop order or of any order preventing or suspending the use of the
Prospectus or the Remarketing Materials, of the suspension of the
qualification of the Remarketed Debentures for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement, the Prospectus or the
Remarketing Materials or for additional information; and, in the event of
the issuance of any stop order or of any order preventing or suspending the
use of any Prospectus or the Remarketing Materials or suspending any such
qualification, to use its commercially reasonable best efforts to obtain
the withdrawal of such order;]
[(b) To furnish to the Remarketing Agent and to counsel
for the Remarketing Agent a signed copy of the Registration Statement as
originally filed with the Commission, and each amendment thereto filed with
the Commission, including all consents and exhibits filed therewith;]
(c) Prior to 10:00 a.m. New York City time, on the New
York Business Day next succeeding the date of this Agreement and from time
to time, to deliver to the Remarketing Agent in New York City such number
of the following documents as the Remarketing Agent shall reasonably
request:
[(i) conformed copies of the Registration
Statement as originally filed with the Commission and each amendment
thereto,]
14
(ii) the Prospectus or the Remarketing Materials
and any amended or supplemented Prospectus or the Remarketing
Materials,
(iii) any document incorporated by reference in
the Prospectus and the Remarketing Materials (excluding exhibits
thereto), and
(iv) any Remarketing Materials;
and, if the delivery of a prospectus is required at any time in connection
with the Remarketing and if at such time any event shall have occurred as a
result of which the Prospectus or the Remarketing Materials as then amended
or supplemented would 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 when
such Prospectus or the Remarketing Materials, as applicable, is delivered,
not misleading, or if for any other reason it shall be necessary during
such same period to amend or supplement the Prospectus and the Remarketing
Materials or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Securities Act or
the Exchange Act, to notify the Remarketing Agent and, upon its request, to
file such document and to prepare and furnish without charge to the
Remarketing Agent and to any dealer in securities as many copies as the
Remarketing Agent may from time to time reasonably request of an amended or
supplemented Prospectus which will correct such statement or omission or
effect such compliance;
[(d) To file with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the Remarketing
Agent, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission (i) any
amendment to the Registration Statement or supplement to the Prospectus or
any document incorporated by reference in the Prospectus or (ii) any
Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a
copy thereof to the Remarketing Agent and counsel for the Remarketing
Agent;
(f) To make generally available to securityholders of
the Company and to deliver to the Remarketing Agent, as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Securities Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a) of
the Securities Act and the Rules and Regulations (including, at the option
of the Company, Rule 158); as soon as practicable after the Effective Date
of the Registration Statement to make generally available to the Company's
securityholders and to deliver to the Remarketing Agent an earnings
statement of the Company and its subsidiaries (which need not be audited)
complying with Section 11(a) of the Securities Act and the Rules and
Regulations (including, at the option of the Company, Rule 158);] and
15
(g) From time to time to take such action as the
Remarketing Agent may reasonably request to qualify the Remarketed
Debentures for offering and sale under the securities laws of such
jurisdictions as the Remarketing Agent may reasonably request and to comply
with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete
the offering of the Debentures; 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.
SECTION 5. Conditions to the Remarketing Agent's Obligations.
-------------------------------------------------
The obligations of the Remarketing Agent hereunder are subject to the accuracy,
on and as of the date when made, of the representations and warranties of the
Company contained herein, to the performance by the Company of their respective
obligations hereunder, and to each of the following additional terms and
conditions. The Remarketing Agent may in its sole discretion waive on its behalf
compliance with any conditions to the obligations of the Remarketing Agent
hereunder.
(a) If filing of a Prospectus is required, such
Prospectus shall have been filed with the Commission and no stop order
suspending the effectiveness of the Registration Statement or any part
thereof or suspending the qualification under the Trust Indenture Act of
the Indenture shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and any request
of the Commission for inclusion of additional information in any
Registration Statement or the Prospectus or otherwise shall have been
complied with.
(b) All corporate proceedings and other legal matters
incident to the authorization, form and validity of the Transaction
Documents, the Debentures, the Instruments, the Prospectus[, the
Registration Statement] or the Remarketing Materials and all other legal
matters relating to this Agreement and the transactions contemplated hereby
shall be reasonably satisfactory in all material respects to the
Remarketing Agent, and the Issuers shall have furnished to such counsel all
documents and information that they may reasonably request to enable them
to pass upon such matters.
(c) [ ], counsel for the Remarketing Agent,
shall have furnished to the Remarketing Agent such written opinion or
opinions, dated the Remarketing Date, with respect to the incorporation of
the Company, the validity of the Debentures, [the Registration Statement,]
the Prospectus, the Remarketing Materials and such other related matters as
the Remarketing Agent may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters.
(d) ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Company, shall
have furnished to the Remarketing Agent their written opinion, dated the
Remarketing Date, in form and substance reasonably satisfactory to
Remarketing Agent, to the effect that:
16
(i) The Company has been duly incorporated and is
validly existing as a corporation under the laws of the State of Indiana,
with corporate power and authority to own its properties and conduct its
business as described in the Prospectus and the Remarketing Materials;
(ii) Anthem Insurance is validly existing as a stock
insurance company under the laws of the State of Indiana with corporate
power and authority to own its property and conduct its business as
described in the Prospectus and the Remarketing Materials;
(iii) The Company has an authorized capitalization as set
forth in the Prospectus and the Remarketing Materials, and all of the
issued shares of capital stock of the Company have been duly authorized and
validly issued and are fully paid and nonassessable; all of the issued
shares of capital stock of Anthem Insurance have been duly and validly
issued, are fully paid and nonassessable and (except as described in the
Prospectus and the Remarketing Materials and the exhibits thereto) are
owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims; the shares of the Issuable Common Stock
have been duly and validly authorized and reserved for issuance and, when
issued and delivered in accordance with the provisions of the Purchase
Contracts, the Purchase Contract Agreement and the Pledge Agreement, will
be duly and validly issued, fully paid and nonassessable; the Issuable
Common Stock conforms in all material respects to the description of the
Common Stock contained in the Prospectus and the Remarketing Materials or
to any amended or supplemented description of the Common Stock contained in
a then effective report or registration statement filed pursuant to the
Exchange Act; and the issuance of the Issuable Common Stock is not subject
to any preemptive or similar rights under the Articles of Incorporation or
the By-Laws of the Company or as a matter of Indiana law;
(iv) This Agreement has been duly authorized, executed
and delivered by the Company and, assuming due authorization, execution and
delivery by the Purchase Contract Agent, constitutes a valid and legally
binding obligation of the Company, enforceable against the Company 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
this Agreement conforms in all material respects to the description thereof
contained in the Prospectus and the Remarketing Materials;
(v) The entry into and compliance by the Company with
all provisions of this Agreement, the Transaction Documents and the
consummation of the transactions herein and therein contemplated will not
result in any violation of the provisions of (A) the Articles of
Incorporation or By-Laws or similar organizational documents, as amended,
of the Company or Anthem Insurance, (B) the documents filed as exhibits
nos. 10.1 through 10.__, inclusive,
17
to the Company's most recent Annual Report on Form 10-K and [list exhibits
to Quarterly Reports on Form 10-Q, if applicable], (C) any material
obligation, agreement, covenant or condition contained in any BCBS License,
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument known to such counsel to which the Company is a
party or by which the Company is bound or to which any of the properties of
the Company is subject, or (D) any Federal statute or the laws of the State
of Indiana or any rule or regulation known to such counsel of any Indiana
or Federal governmental agency or body having jurisdiction over the Company
or Anthem Insurance or any of their properties, except, in the case of
clauses (B), (C) and (D), as would not, individually or in the aggregate,
adversely affect the validity or performance of this Agreement, the
Instruments or the Transaction Documents or have a Material Adverse Effect;
(vi) Each of the Company, Anthem Insurance and each of
their respective Material Subsidiaries has made all Filings required to be
made pursuant to, and has obtained all Approvals required to be obtained
under, any law or regulation of the United States or the State of Indiana
for the entry into and compliance by the Company with all provisions of
this Agreement and the Transaction Documents, and the consummation of the
transactions herein and therein contemplated, except for such Filings and
Approvals, individually or in the aggregate, as would not affect the
validity, performance of, or adversely affect the consummation of, the
transactions contemplated by this Agreement and the Transaction Documents
or would not have a Material Adverse Effect; and all such Filings and
Approvals are in full force and effect;
[(vii) To such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement or any part
thereof has been issued and no proceedings for that purpose have been
instituted or are pending or threatened by the Commission under the
Securities Act;]
(viii) The Units have been duly authorized, executed,
authenticated, issued and delivered and constitute valid and legally
binding obligations of the Company, enforceable against the Company in
accordance with their 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 principlescon; the
Units are in the form contemplated by, and are entitled to the benefits of,
the Purchase Contract Agreement; and the Units conform in all material
respects to the description thereof contained in the Prospectus and the
Remarketing Materials;
(ix) The Purchase Contract Agreement has been duly
authorized, executed and delivered by the Company and assuming due
authorization, execution and delivery thereof by the Purchase Contract
Agent, constitutes a valid and legally binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject, as
to enforcement, to
18
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles; and the Purchase Contract Agreement conforms in all
material respects to the description thereof contained in the Prospectus
and the Remarketing Materials;
(x) The Purchase Contracts underlying the Units have
been duly authorized, issued and delivered and constitute valid and legally
binding obligations of the Company, enforceable against the Company in
accordance with their 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; the
Purchase Contracts conform in all material respects to the description
thereof contained in the Prospectus and the Remarketing Materials; and the
issuance of the Purchase Contracts is not subject to any preemptive or
similar rights;
(xi) The Pledge Agreement has been duly authorized,
executed and delivered by the Company and assuming due authorization,
execution and delivery thereof by the Collateral Agent and the Purchase
Contract Agent, constitutes a valid and legally binding obligation of the
Company, enforceable against the Company 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 Pledge Agreement conforms
in all material respects to the description thereof contained in the
Prospectus and the Remarketing Materials;
(xii) Each of the Base Indenture and the First
Supplemental Indenture has been duly authorized, executed and delivered by
the Company and assuming due authorization, execution and delivery thereof
by the Trustee, constitutes a valid and legally binding obligation of the
Company, enforceable against the Company 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; the Indenture has been duly
qualified under the Trust Indenture Act; and the Indenture conforms in all
material respects to the description thereof contained in the Prospectus
and the Remarketing Materials;
(xiii) The Debentures underlying the Units have been duly
authorized, executed, authenticated, issued and delivered and constitute
valid and legally binding obligations of the Company, enforceable against
the Company in
19
accordance with their 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; the
Debentures are in the form contemplated by, and are entitled to the
benefits of, the Indenture and conform in all material respects to the
description thereof contained in the Prospectus and the Remarketing
Materials;
(xiv) The statements set forth in the Prospectus [and the
Remarketing Materials] under the captions ["Description of Units", insofar
as they purport to constitute a summary of the terms of the Instruments and
the Transaction Documents, and "Description of Capital Stock", insofar as
they purport to constitute a summary of the terms of the Stock, and under
the captions "Risk Factors - We are using the Blue Cross and Blue Shield
names and marks as identifiers for our products and services under licenses
from the Blue Cross Blue Shield Association. The termination of these
license agreements could adversely affect our business, financial condition
and results of operations", "Risk Factors -- Additional risks relevant to
you as a holder of the units", "The Business of Anthem - The Blue Cross
Blue Shield License", "Legal and Regulatory Matters", "U.S. Federal Income
Tax Consequences" and "Underwriting",] insofar as they purport to describe
the provisions of the laws and documents referred to therein, are accurate
and complete in all material respects;
(xv) Neither the Company, Anthem Insurance nor any of
their respective subsidiaries is and, after giving effect to the
Remarketing and the consummation of the transactions contemplated herein
and in the Remarketing Procedures, will be an "investment company", as such
term is defined in the Investment Company Act and the rules and regulations
thereunder;
(xvi) To such counsel's knowledge, other than as
described or contemplated in the Prospectus and the Remarketing Materials,
there are no legal or governmental proceedings pending to which the
Company, Anthem Insurance or any of their respective subsidiaries is a
party or of which any property of the Company, Anthem Insurance or any of
their respective subsidiaries is the subject which, if determined adversely
to the Company, Anthem Insurance or any of their respective subsidiaries,
could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect; and, to such counsel's knowledge and other than as
described or contemplated in the Prospectus and the Remarketing Materials,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(xvii) Assuming the transactions described in the
Prospectus and the Remarketing Materials are consummated and performed in
the manner described in the Prospectus and the Remarketing Materials, the
discussion under the heading "U.S. Federal Income Tax Consequences", except
to the extent of
20
statements as to the Company's expectations or determinations, constitutes
such counsel's opinion; and
(xviii) [The Registration Statement, Prospectus or the
Remarketing Materials and any further amendments and supplements thereto
made by the Company (other than the financial sta tements and related
schedules and other financial information contained therein and Form T-1,
as to which such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Securities Act, the Trust
Indenture Act and the rules and regulations thereunder;] although they do
not assume any responsibility for the accuracy and completeness of the
statements contained in [the Registration Statement,] the Prospectus or the
Remarketing Materials, except for those referred to in the opinions in
subsections (xiv) and (xvii) of this Section 5(d), such counsel shall
[also] state that, they have no reason to believe that [the Registration
Statement (other than the financial statements and related schedules and
other financial information contained therein and Form T-1, as to which
such counsel need express no belief), at the time it became effective,
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 contained therein not misleading, or that] the Prospectus or the
Remarketing Materials or any further amendment or supplement thereto made
by the Company (other than the financial statements and related schedules
and other financial information contained therein [and Form T-1], as to
which such counsel need express no belief) contained any untrue statement
of a material fact or omitted to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading or that either [the Registration Statement,] the
Prospectus or the Remarketing Materials or any further amendment or
supplement thereto made by the Company (other than the financial statements
and related schedules and other financial information contained therein
[and Form T-1], as to which such counsel need express no opinion) contains
an untrue statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading[; and they do not know of any
amendment to the Registration Statement required to be filed or of any
contracts or other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be described in the
Registration Statement, Prospectus or the Remarketing Materials which are
not filed or described as required].
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than the United States and the
State of Indiana and such counsel may rely as to all matters governed by the
laws of the State of New York upon the opinion of [__________] referred to in
Section 5(c).
(e) ▇▇▇▇▇ ▇. ▇▇▇▇▇, Executive Vice-President and Chief Legal and
Administrative Officer of the Company, shall have furnished to you his written
opinion,
21
dated the Remarketing Date, in form and substance reasonably satisfactory
to you, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation under the laws of the State of Indiana, with the
corporate power and authority to own its properties and conduct its
business as described in the Prospectus and the Remarketing Materials;
(ii) Anthem Insurance is validly existing as a stock insurance
company under the laws of the State of Indiana with corporate power and
authority to own its property and conduct its business as described in the
Prospectus and the Remarketing Materials;
(iii) The Company has an authorized capitalization as described
in the Prospectus and the Remarketing Materials, and all of the issued
shares of capital stock of the Company have been duly authorized and
validly issued and are fully paid and nonassessable; all of the issued
shares of capital stock of Anthem Insurance have been duly and validly
issued, are fully paid and nonassessable and (except as described in the
Prospectus and the Remarketing Materials and the exhibits thereto) are
owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims; the shares of the Issuable Common Stock
have been duly and validly authorized and reserved for issuance and, when
issued and delivered in accordance with the provisions of the Purchase
Contracts, the Purchase Contract Agreement and the Pledge Agreement, will
be duly and validly issued, fully paid and nonassessable; the Issuable
Common Stock conforms in all material respects to the description of the
Common Stock contained in the Prospectus and the Remarketing Materials or
to any amended or supplemented description of the Common Stock contained in
a then effective report or registration statement filed pursuant to the
Exchange Act; and the issuance of the Issuable Common Stock is not subject
to any preemptive or similar rights under the Articles of Incorporation or
the By-Laws of the Company or as a matter of Indiana law;
(iv) Each Material Subsidiary of the Company and Anthem
Insurance has been duly organized and is validly existing as a corporation,
partnership or limited liability company, as applicable, and is in good
standing under the laws of its jurisdiction of organization; and all issued
shares of capital stock or other ownership interests of each such Material
Subsidiary have been duly authorized and validly issued, are fully paid and
nonassessable, and (except as described in the Prospectus and the
Remarketing Materials) are owned directly or indirectly by the Company or
Anthem Insurance, free and clear of all liens, encumbrances, equities or
claims (such counsel being entitled to rely in respect of the opinion in
this clause upon opinions of local counsel and in respect to matters of
facts upon certificates of officers of the Company, Anthem Insurance or
their respective subsidiaries; provided that such counsel shall state that
he
22
believes that both you and he are justified in relying upon such opinions
and certificates);
(v) Each of the Company, Anthem Insurance and each of their
respective Material Subsidiaries has been duly qualified as a foreign
corporation, partnership or limited liability company, as applicable, for
the transaction of business and, to the extent such concept is applicable,
is in good standing under the laws of each other jurisdiction in which its
ownership or lease of property or the conduct of its business requires such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified and in good standing in any such
jurisdiction;
(vi) Each of Anthem Insurance and each Insurance or Healthcare
Subsidiary is duly organized and licensed as an insurance, healthcare, HMO
or health care management company or holding company in respect thereof in
its jurisdiction of incorporation, and is duly licensed or authorized as
such in each other jurisdiction where it is required to be so licensed or
authorized to conduct its business as described in the Prospectus and the
Remarketing Materials, except where the failure to be so licensed or
authorized could not reasonably be expected to have a Material Adverse
Effect; except as otherwise described in the Prospectus and the Remarketing
Materials, each of Anthem Insurance and each Insurance or Healthcare
Subsidiary has all other Approvals of and from all insurance or healthcare
related regulatory authorities to conduct its business, except where the
failure to have such Approvals could not reasonably be expected to have a
Material Adverse Effect; to such counsel's knowledge, there is no pending
or threatened action, suit, proceeding or investigation that could
reasonably be expected to lead to the revocation, termination or suspension
of any such Approval, the revocation, termination or suspension of which
would have, individually or in the aggregate, a Material Adverse Effect;
and, to such counsel's knowledge, no insurance or healthcare related
regulatory agency or body has issued any order or decree impairing,
restricting or prohibiting the payment of dividends by any Insurance or
Healthcare Subsidiary to its parent;
(vii) Each of the Company, Anthem Insurance and each of their
respective Material Subsidiaries has all necessary Approvals from, and has
made all Filings with, all insurance regulatory authorities, all Federal,
state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, which are necessary to
own, lease, license and use its properties and assets and to conduct its
business in the manner described in the Prospectus and the Remarketing
Materials, except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect; to such counsel's knowledge,
all such Approvals and Filings are in full force and effect and neither the
Company, Anthem Insurance nor any of their respective Material Subsidiaries
has received any notice of any event, inquiry, investigation or proceeding
that would reasonably be expected to result in the suspension, revocation
or limitation of any such Approval or otherwise impose any limitation
23
on the conduct of the business of the Company, Anthem Insurance or any such
subsidiary, except as described in the Prospectus and the Remarketing
Materials;
(viii) To such counsel's knowledge, other than as described or
contemplated in the Prospectus and the Remarketing Materials, there are no
legal or governmental proceedings pending to which the Company, Anthem
Insurance or any of their respective subsidiaries is a party or of which
any property of the Company, Anthem Insurance or any of their respective
subsidiaries is the subject which, if determined adversely to the Company,
Anthem Insurance or any of their respective subsidiaries, could reasonably
be expected to have, individually or in the aggregate, a Material Adverse
Effect; and, to such counsel's knowledge and other than as described or
contemplated in the Prospectus and the Remarketing Materials, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(ix) This Agreement has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution and
delivery by the Purchase Contract Agent, constitutes a valid and legally
binding obligation of the Company, enforceable against the Company 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
this Agreement conforms in all material respects to the description thereof
contained in the Prospectus and the Remarketing Materials;
(x) Neither the Company, Anthem Insurance nor any of their
respective subsidiaries is and, after giving effect to the Remarketing and
the consummation of the transactions contemplated herein and in the
Remarketing Procedures, will be an "investment company", as such term is
defined in the Investment Company Act and the rules and regulations
thereunder;
(xi) The entry into and compliance by the Company with all
provisions of this Agreement and the Transaction Documents, and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any BCBS License, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company, Anthem Insurance or
any of their respective subsidiaries is a party or by which the Company,
Anthem Insurance or any of their respective subsidiaries is bound or to
which any of the property or assets of the Company, Anthem Insurance or any
of their respective subsidiaries is subject, or which affects the validity,
performance or consummation of the Instruments, the Remarketing or the
transactions contemplated by this Agreement or the Transaction Documents,
nor will such action result in any violation of the provisions of (x) the
Articles of Incorporation or the By-Laws or similar organizational
documents, as amended, of the Company, Anthem Insurance or
24
any of their respective subsidiaries or (y) to such counsel's knowledge,
any statute or any order, rule or regulation of any court or insurance
regulatory agency or other governmental agency or body having jurisdiction
over the Company, Anthem Insurance or any of their respective subsidiaries
or any of their properties, in each case the effect of which (other than a
violation of the Articles of Incorporation or the By-Laws or similar
organizational documents of the Company or Anthem Insurance), individually
or in the aggregate, would be either to adversely affect the validity of
the Instruments or their respective issuance or to adversely affect the
consummation of the Remarketing or other transactions contemplated hereby
or by the Transaction Documents or to have a Material Adverse Effect;
(xii) Each of the Company, Anthem Insurance and each of their
respective Material Subsidiaries has made all Filings required to be made
pursuant to, and has obtained all Approvals required to be obtained under,
any law or regulation of the United States or the State of Indiana for the
entry into and compliance by the Company with all provisions of this
Agreement and the Transaction Documents, and the consummation of the
transactions herein and therein contemplated, except for such Filings and
Approvals, individually or in the aggregate, as would not affect the
validity, performance of, or adversely affect the consummation of, the
transactions contemplated by this Agreement and the Transaction Documents
or would not have a Material Adverse Effect; and all such Filings and
Approvals are in full force and effect;
(xiii) The Units have been duly authorized, executed,
authenticated, issued and delivered and constitute valid and legally
binding obligations of the Company, enforceable against the Company in
accordance with their 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 principlescon; the
Units are in the form contemplated by, and are entitled to the benefits of,
the Purchase Contract Agreement; and the Units conform in all material
respects to the description thereof contained in the Prospectus and the
Remarketing Materials;
(xiv) The Purchase Contracts underlying the Units have been
duly authorized, issued and delivered and constitute valid and legally
binding obligations of the Company, enforceable against the Company in
accordance with their 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; the
Purchase Contracts conform in all material respects to the description
thereof contained in the Prospectus and the Remarketing Materials; and the
issuance of the Purchase Contracts is not subject to any preemptive or
similar rights;
(xv) The Debentures underlying the Units have been duly
authorized, executed, authenticated, issued and delivered and constitute
valid and
25
binding obligations of the Company, enforceable against the Company in
accordance with their 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; the
Debentures are in the form contemplated by, and are entitled to the
benefits of, the Indenture and conform in all material respects to the
description thereof contained in the Prospectus and the Remarketing
Materials;
(xvi) [To such counsel's knowledge, no stop order suspending
the effectiveness of the Registration Statement or any part thereof has
been issued, and no proceedings for that purpose have been instituted or
are pending or contemplated under the Securities Act;]
(xvii) The statements set forth in the Prospectus [and the
Remarketing Materials] under the captions ["Description of Units", insofar
as they purport to constitute a summary of the terms of the Instruments,
and "Description of Capital Stock", insofar as they purport to constitute a
summary of the terms of the stock, and under the captions "Risk Factors -
We are using the Blue Cross and Blue Shield names and marks as identifiers
for our products and services under licenses from the Blue Cross Blue
Shield Association. The termination of these license agreements could
adversely affect our business, financial condition and results of
operations", "Risk Factors -- Additional risks relevant to you as a holder
of the units", "The Business of Anthem - The Blue Cross Blue Shield
License", "Legal and Regulatory Matters", "U.S. Federal Income Tax" and
"Underwriting",] insofar as they purport to describe the provisions of the
laws and documents referred to herein, are accurate and complete in all
material respects;
(xviii) Neither the Company, Anthem Insurance nor any of their
respective subsidiaries is (A) in violation of its articles of
incorporation or by-laws or similar organizational document or (B) in
default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any BCBS License, 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, in the case of clause (B), where such default could
not reasonably be expected to have a Material Adverse Effect;
(xix) The Company, Anthem Insurance and their respective
Material Subsidiaries have good and marketable title in fee simple to all
material real property owned by them, in each case free and clear of all
liens, encumbrances and defects except such as are described in the
Prospectus and the Remarketing Materials or such as do not materially
affect the value of such property and do not interfere with the use made
and proposed to be made of such property, and any material real property
and buildings held under lease by the Company, Anthem Insurance and their
respective Material Subsidiaries are held
26
by them under valid, subsisting and enforceable leases with such exceptions
as are not material and do not interfere with the use made and proposed to
be made of such property and buildings (in giving the opinion in this
clause, such counsel may state that no examination of record titles for the
purpose of such opinion has been made, and that they are relying upon a
general review of the titles of the Company, Anthem Insurance and their
respective Material Subsidiaries, upon opinions of local counsel and
abstracts, reports and policies of title companies rendered or issued at or
subsequent to the time of acquisition of such property by the Company,
Anthem Insurance any their respective Material Subsidiaries, upon opinions
of counsel to the lessors of such property and, in respect to matters of
fact, upon certificates of officers of the Company, Anthem Insurance or
their respective subsidiaries, provided that such counsel shall state that
they believe that both you and they are justified in relying upon such
opinions, abstracts, reports, policies and certificates; and
(xx) [The Registration Statement, Prospectus or the Remarketing
Materials and any further amendments and supplements thereto made by the
Company (other than the financial statements and related schedules and
other financial information contained therein and Form T-1, as to which
such counsel need express no opinion) comply as to form in all material
respects with the requirements of the Securities Act, the Trust Indenture
Act and the rules and regulations thereunder;] although they do not assume
any responsibility for the accuracy and completeness of the statements
contained in [the Registration Statement,] the Prospectus or the
Remarketing Materials, except for those referred to in the opinions in
subsection (xvii) of this Section 5(e), such counsel shall [also] state
that, they have no reason to believe that [the Registration Statement
(other than the financial statements and related schedules and other
financial information contained therein and Form T-1, as to which such
counsel need express no belief), at the time it became effective, 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 contained
therein not misleading, or that] the Prospectus or the Remarketing
Materials or any further amendment or supplement thereto made by the
Company (other than the financial statements and related schedules and
other financial information contained therein [and Form T-1], as to which
such counsel need express no belief) contained any untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading or that either [the Registration Statement,] the
Prospectus or the Remarketing Materials or any further amendment or
supplement thereto made by the Company (other than the financial statements
and related schedules and other financial information contained therein
[and Form T-1], as to which such counsel need express no opinion) contains
an untrue statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading[; and they do not know of any
amendment to the Registration Statement required to be filed or of
27
any contracts or other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be described in the
Registration Statement, Prospectus or the Remarketing Materials which are
not filed or described as required].
In rendering such opinion, such counsel may state that he expresses no
opinion as to the laws of any jurisdiction other than the United States and the
State of Indiana and such counsel may rely as to all matters governed by the
laws of the State of New York upon the opinion of [____________] referred to in
Section 5(c).
(f) The Company will furnish the Remarketing Agent with such
conformed copies of such opinions, certificates, letters and documents as the
Remarketing Agent reasonably requests.
(g) On the Remarketing Date at 9:30 a.m., New York City time Ernst &
Young LLP, the independent auditors, or another independent accounting firm with
a nationally recognized reputation, that have audited the consolidated financial
statements of the Company, shall have furnished to the Remarketing Agent a
letter or letters, dated the respective dates of delivery thereof, in form and
substance reasonably satisfactory to the Remarketing Agent, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" with respect to certain financial information contained in the
Prospectus and in the Remarketing Materials.
(h) (i) (i) Neither the Company nor Anthem Insurance nor any of
their respective subsidiaries shall have sustained since the date of the latest
audited financial statements included in the Prospectus and the Remarketing
Materials any loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus and the Remarketing Materials, and (ii)
since the respective dates as of which information is given in the Prospectus
and the Remarketing Materials, there shall not have been any change in the
surplus of Anthem Insurance or the capital stock of the Company or the long-term
debt of the Company, Anthem Insurance and their respective subsidiaries,
considered as a whole, or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company, Anthem Insurance
and any of their respective subsidiaries, otherwise than as set forth or
contemplated in the Prospectus and the Remarketing Materials, the effect of
which, in any such case described in clause (i) or (ii), is in the judgment of
the Remarketing Agent so material and adverse as to make it impracticable or
inadvisable to proceed with the Remarketing on the terms and in the manner
contemplated in the Prospectus and the Remarketing Materials.
(i) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the debt securities or the financial strength or
claims paying ability of the Company, Anthem Insurance or any of their
respective subsidiaries by A.M. Best & Co. or any "nationally recognized
statistical rating organization", as that
28
term is defined by the Commission for purposes of Rule 436(g)(2) under the
Securities Act, and (ii) no such organization shall have publicly announced
that it has under surveillance or review, with possible negative
implications, its rating of any debt security or the financial strength or
the claims paying ability of the Company, Anthem Insurance or any of their
respective subsidiaries.
(j) On or after the date hereof there shall not have occurred
any of the following: (i) a change in U.S. or international financial,
political or economic conditions or currency exchange rates or exchange
controls as would, in the judgment of the Remarketing Agent, be likely to
prejudice materially the success of the proposed issue, sale or
distribution of the Units, whether in the primary market or in respect of
dealings in the secondary market; (ii) a suspension or material limitation
in trading in securities generally on the Exchange; (iii) a suspension or
material limitation in trading in the Company's securities on the Exchange;
(iv) a general moratorium on commercial banking activities declared by
either Federal or New York State authorities or a material disruption in
commercial banking or securities settlement or clearance services in the
United States; or (v) the outbreak or escalation of hostilities involving
the United States or the declaration by the United States of a national
emergency or war or the occurrence of any other calamity or crisis, if the
effect of any such event specified in this clause (v) in the judgment of
the Remarketing Agent makes it impracticable or inadvisable to proceed with
the Remarketing on the terms and in the manner contemplated in the
Prospectus and the Remarketing Materials.
(k) The Company and Anthem Insurance shall have complied with
the provisions of Section 4 hereof with respect to the furnishing of copies
of the Prospectus and the Remarketing Materials on the New York Business
Day next succeeding the date of this Agreement.
(l) The Company shall have furnished or caused to be furnished
to the Remarketing Agent at the Remarketing Date certificates of officers
of the Company satisfactory to the Remarketing Agent as to the accuracy of
the representations and warranties of the Company herein at and as of the
Remarketing, as to the performance by the Company of all of their
obligations hereunder to be performed at or prior to the Remarketing, as to
the matters set forth in subsections (a) and (h) of this Section 5 and as
to such other matters as you may reasonably request.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to the Remarketing Agent.
SECTION 6. Indemnification and Contribution. (a) The Company will,
--------------------------------
jointly and severally, indemnify and hold harmless the Remarketing Agent against
any losses, claims, damages or liabilities, joint or several, to which the
Remarketing Agent may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, [the
29
Registration Statement,] the Prospectus or the Remarketing Materials, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse the Remarketing Agent for any legal or other expenses reasonably
incurred by the Remarketing Agent in connection with investigating or defending
any such action or claim as such expenses are incurred; provided, however, that
the Company shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, [the Registration Statement,] the Prospectus or the
Remarketing Materials, or any such amendment or supplement(s) in reliance upon
and in conformity with written information furnished to the Company by the
Remarketing Agent expressly for use therein.
(b) The Remarketing Agent will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the
Company or Anthem Insurance may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, [the Registration Statement,] the Prospectus or the
Remarketing Materials or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Preliminary Prospectus, [the
Registration Statement,] the Prospectus or the Remarketing Materials or any
such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by the Remarketing Materials
expressly for use therein; and will reimburse the Company for any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof
with counsel satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party under such subsection
for any legal expenses of other counsel or any other expenses, in each case
30
subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of
any judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to
such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all
liability arising out of such action 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) If the indemnification provided for in this Section 6 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand and the Remarketing Agent on the other from the Remarketing. If,
however, the allocation provided by the immediately preceding sentence is
not permitted by applicable law or if the indemnified party failed to give
the notice required under subsection (c) above, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified
party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one and
the Remarketing Agent on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one
hand and the Remarketing Agent on the other shall be deemed to be in the
same proportion as the aggregate principal amount of the Remarketed
Debentures bear to the remarketing fees received by the Remarketing Agent
under this Agreement. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or the
Remarketing Agent on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission. The Company and the Remarketing Agent agree that it would not
be just and equitable if contributions pursuant to this subsection (d) were
determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to
above in this subsection (d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions
in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (d), the
Remarketing Agent shall not be required to contribute any amount in excess
of the amount by which the aggregate principal amount of the Remarketed
Debentures exceeds the amount of any damages which the Remarketing Agent
has otherwise been required to
31
pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The obligations of the Company and Anthem Insurance under
this Section 6 shall be in addition to any liability which the Company may
otherwise have and shall extend, upon the same terms and conditions, to
each person, if any, who controls Remarketing Agent within the meaning of
the Securities Act. The obligations of the Remarketing Agent under this
Section 6 shall be in addition to any liability which the Remarketing Agent
may otherwise have and shall extend, upon the same terms and conditions, to
each officer and director of the Company and to each person, if any, who
controls the Company within the meaning of the Securities Act.
SECTION 7. Resignation and Removal of the Remarketing Agent. The
------------------------------------------------
Remarketing Agent may resign and be discharged from its duties and obligations
hereunder, and the Company may remove the Remarketing Agent, by giving [_] days'
prior written notice to the Purchase Contract Agent and the Trustee and, in the
case of a removal, the removed Remarketing Agent; provided that (i) the Company
may not remove the Remarketing Agent unless [ ] and (ii) no such
resignation nor any such removal shall become effective until the Company shall
have appointed at least one nationally recognized broker-dealer as successor
Remarketing Agent and such successor Remarketing Agent shall have entered into a
with the Company in which it shall have agreed to conduct
the Remarketing in accordance with the Remarketing Procedures. In any such case,
the Company will use its best reasonable efforts to appoint a successor
Remarketing Agent and enter into such a with such person
as soon as reasonably practicable. The provisions of Sections 4 and 6 shall
survive the resignation or removal of any Remarketing Agent pursuant to this
Agreement.
SECTION 8. Dealing in the Remarketed Debentures. The Remarketing
------------------------------------
Agent, when acting as a Remarketing Agent or in its individual or any other
capacity, may, to the extent permitted by law, buy, sell, hold and deal in any
of the Remarketed Debentures. The Remarketing Agent may exercise any vote or
join in any action which any beneficial owner of Remarketed Debentures may be
entitled to exercise or take pursuant to the Purchase Contract Agreement or the
Indenture with like effect as if it did not act in any capacity hereunder. The
Remarketing Agent, in its individual capacity, either as principal or agent, may
also engage in or have an interest in any financial or other transaction with
the Company, as freely as if it did not act in any capacity hereunder.
SECTION 9. Remarketing Agent's Performance; Duty of Care; Supervising
----------------------------------------------------------
Obligations. The duties and obligations of the Remarketing Agent shall be
-----------
determined solely by the express provisions of this Agreement and the Purchase
Contract Agreement. No implied covenants or obligations of or against the
Remarketing Agent shall be read into this Agreement or the Purchase Contract
Agreement. In the absence of bad faith on the part of the Remarketing Agent,
the Remarketing Agent may conclusively rely upon any document furnished to it,
which purports to conform to the requirements of this Agreement or the Purchase
Contract Agreement
32
as to the truth of the statements expressed in any of such documents. The
Remarketing Agent shall be protected in acting upon any document or
communication reasonably believed by it to have been signed, presented or made
by the proper party or parties. The Remarketing Agent, acting under this
Agreement, shall incur no liability to the Company or to any holder of
Remarketed Debentures in its individual capacity or as Remarketing Agent for any
action or failure to act, on its part in connection with a Remarketing or
otherwise, except if such liability is judicially determined to have resulted
from the bad faith, negligence or willful misconduct on its part. The
Remarketing Agent may, but shall not be obligated to, purchase Remarketed
Debentures for its own account.
If at any time during the term of this Agreement, any Event of Default
under the Indenture, or any event that with the passage of time or the giving of
notice or both would become on Event of Default under the Indenture, has
occurred and is continuing under the Indenture, then the obligations and duties
of the Remarketing Agent under this Agreement shall be suspended until such
default or event has been cured. The Company will cause the Trustee and the
Purchase Contract Agent to give the Remarketing Agent notice of all such
defaults and events of which such trustee or agent is aware.
SECTION 10. Termination. This Agreement shall terminate as to the
-----------
Remarketing Agent on the effective date of the resignation or removal of the
Remarketing Agent pursuant to Section 7. In addition, the obligations of the
Remarketing Agent hereunder may be terminated by it by notice given to the
Company prior to 10:00 A.M., New York City time, on the Remarketing Date if,
prior to that time, any of the events described in Sections 5(j) shall have
occurred.
SECTION 11. Notices. Except as otherwise stated herein, all
-------
statements, requests, notices and agreements hereunder shall be in writing, and
if to the Remarketing Agent shall be delivered or sent by mail or facsimile
transmission to ____________________________; if to the Company shall be
delivered or sent by mail or facsimile transmission to the address of the
Company set forth in the Registration Statement, Attention: Treasurer; if to the
Trustee shall be delivered or sent by mail to ▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Corporate Trust Administration, or by facsimile
transmission to (▇▇▇) ▇▇▇-▇▇▇▇; if to the Purchase Contract Agent shall be
delivered or sent by mail to ▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: Corporate Trust Administration, or by facsimile transmission to (212)
896-7298; and if to the Collateral Agent or the Custodial Agent shall be
delivered or sent by mail to The Chase Manhattan Bank, Clearance & Collateral
Management, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, or by facsimile transmission to (▇▇▇) ▇▇▇-▇▇▇▇.
Any such statements, requests, notices or agreements shall take effect
at the time of receipt thereof.
SECTION 12. Successors and Assigns. This Agreement shall be binding
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upon, and inure solely to the benefit of, the Remarketing Agent, the Company to
the extent provided in Section 6 hereof, the officers and directors of the
Company and each person who controls the Company or the Remarketing Agent, and
their respective heirs, executors, administrators,
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successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. No purchaser of any of the Debentures from
the Remarketing Agent shall be deemed a successor or assign by reason merely of
such purchase.
SECTION 13. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
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CONSTRUED IN ACCORDANCE WITH THE LAWS OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW.
SECTION 14. Jurisdiction. The Company hereby submits to the
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nonexclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
SECTION 15. Counterparts. This Agreement may be executed in one or
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counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
SECTION 16. Headings. The headings herein are inserted for
--------
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
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If the foregoing correctly sets forth the agreement among the Company,
the Purchase Contract Agent and the Remarketing Agent, please indicate your
acceptance in the space provided for that purpose below.
Very truly yours,
ANTHEM, INC.
By:_____________________________
Name:
Title:
THE BANK OF NEW YORK,
as Purchase Contract Agent
By: ____________________________
Name:
Title:
Accepted:
[NAME OF REMARKETING AGENT]
By:________________________
Authorized Representative
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