EXHIBIT 5.1
[Letterhead of Alston & Bird LLP]
August 29, 2000
UnumProvident Corporation
1 Fountain Square
Chattanooga, Tennessee 37402
UnumProvident Financing Trust II
1 Fountain Square
Chattanooga, Tennessee 37402
UnumProvident Financing Trust III
1 Fountain Square
Chattanooga, Tennessee 37402
Ladies and Gentlemen:
This opinion is given in connection with the preparation and filing with
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933 (the "Act") of a registration statement on Form S-3 (the
"Registration Statement") by UnumProvident Corporation, a Delaware corporation
(the "Company"), UnumProvident Financing Trust II, a Delaware statutory business
trust ("Trust II"), and UnumProvident Financing Trust III, a Delaware statutory
business trust ("Trust III"), relating to the offering from time to time,
together or separately and in one or more series, of the following securities of
(A) the Company: (i) Senior Debt Securities; (ii) Subordinated Debt Securities;
(iii) Preferred Stock; (iv) Depositary Shares; (v) Common Stock; (vi) Warrants;
(vii) Stock Purchase Contracts; and (viii) Stock Purchase Units (collectively
the "Securities), (B) Trust II: Preferred Securities, as guaranteed by the
Company (the "Trust II Guarantee"), and (C) Trust III: Preferred Securities, as
guaranteed by the Company (the "Trust III Guarantee," and together with the
Trust II Guarantee, the "Trust Guarantees").
The Securities, together with the Preferred Securities, will have an
aggregate offering price of up to $1,000,000,000 and will be offered on a
continuous or delayed basis pursuant to the provisions of Rule 415 under the
Act.
The Senior Debt Securities and Subordinated Debt Securities are to be
issued under a separate indenture for each type of security, to be entered into
by and between the Company and The Chase Manhattan Bank as Trustee (the
"Trustee"). Each of the indentures will be subject to and governed by the Trust
Indenture Act of 1939 (the "TIA").
The Preferred Securities are to be issued by Trust II or Trust III, or
both, from time to time pursuant to an Amended and Restated Declaration of
Trust, to be entered into by and among the Company, the Trustee, The Chase
Manhattan Bank USA, N.A., as
Delaware Trustee (the "Delaware Trustee") and Administrative Trustees to be
named therein. Each Amended and Restated Declaration of Trust will be subject to
and governed by the TIA. The Preferred Securities will only be offered by either
of the trusts in connection with the purchase by the trusts of Subordinated Debt
Securities issued by the Company. The Trust Guarantees will be evidenced by a
Guarantee Agreement entered into by and between the Company and The Chase
Manhattan Bank (the "Guarantee Trustee") only if either of the trusts make a
future offering of the Preferred Securities.
The Depositary Shares will be deposited under a Deposit Agreement by and
between the Company and a bank or trust company as Depositary, and evidenced by
Depositary Receipts. Each Depositary Receipt will represent a fraction of a
share of the particular series of Preferred Stock issued and deposited with a
Depositary. The fraction of a share of Preferred Stock which each depositary
share will represent will be set forth in the applicable prospectus supplement
to the Registration Statement.
Warrants will be issued either independently or together with other
Securities and will be issued pursuant to a Warrant Agreement by and between the
Company and a bank or trust company as Warrant Agent. Terms of the warrants and
the Warrant Agreement will be set forth in the applicable prospectus supplement
to the Registration Statement.
As counsel to the Company, we have examined the relevant corporate and
other documents, incident to the giving of this opinion. In our examination, we
have assumed the genuineness of all signatures and the authenticity of all
documents submitted to us as original documents, and conformity to original
documents of all documents submitted to us as certified, conformed or
photostatic copies. In addition, we have assumed that any samples of documents
submitted to us will be executed without any alterations made thereto. Based
upon the foregoing, and subject to all of the other assumptions set forth
herein, we are of the opinion as follows:
1. The shares of Common Stock, when both (A) the board of directors of the
Company has taken all necessary corporate action to approve the issuance
and terms of the offering of the shares of the Common Stock whether in
certificated or uncertificated form, and related matters, in each case
so as not to violate any applicable law or any agreement or instrument
to which the Company is a party or by which it is bound, and (B) if such
Common Stock is in certificated form, certificates representing the
shares of Common Stock have been duly executed, countersigned,
registered and delivered either (i) in accordance with the applicable
definitive purchase, underwriting or similar agreement approved by the
board of directors of the Company upon payment of the consideration
therefor (not less than the par value of the Common Stock) provided for
therein or (ii) upon conversion or exercise of any Securities, in
accordance with the terms of such Securities or the instrument governing
such Securities providing for such conversion or exercise as approved by
the board of directors of the Company, for the consideration approved by
the board of directors of the
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Company (not less than par value of the Common Stock), will be validly
issued, fully paid and nonassessable.
2. The shares of Preferred Stock, when both (A) the board of directors of
the Company has taken all necessary corporate action to approve the
issuance and terms of the offering of the shares of the Preferred Stock
whether in certificated or uncertificated form, and related matters, in
each case so as not to violate any applicable law or any agreement or
instrument to which the Company is a party or by which it is bound,
including the adoption of a Certificate of Designation relating to such
Preferred Stock (a "Certificate") and the filing of the Certificate with
the Secretary of State of the State of Delaware, and (B) if such
Preferred Stock is in certificated form, certificates representing the
shares of Preferred Stock have been duly executed, countersigned,
registered and delivered either (i) in accordance with the applicable
definitive purchase, underwriting or similar agreement approved by the
board of directors of the Company upon payment of the consideration
therefor (not less than the par value of the Preferred Stock) provided
for therein or (ii) upon conversion or exercise of any Securities, in
accordance with the terms of such Securities or the instrument governing
such Securities providing for such conversion or exercise as approved by
the board of directors of the Company, for the consideration approved by
the board of directors of the Company (not less than par value of the
Preferred Stock), will be validly issued.
3. The Depositary Shares, when (A) the board of directors of the Company
has taken all necessary corporate action to approve the issuance and
terms of the offering of the Depositary Shares, and related matters, in
each case so as not to violate any applicable law or any agreement or
instrument to which the Company is a party or by which it is bound, (B)
the Depositary Agreement or Agreements relating to the Depositary Shares
and the related Depositary Receipts have been duly authorized and
validly executed and delivered by the Company and the Depositary
appointed by the Company, (C) the shares of Preferred Stock underlying
such Depositary Shares have been duly and validly issued and are fully
paid and nonassessable as contemplated in paragraph 3 above and
deposited with a bank or trust company (which meets the requirements for
Depositary set forth in the Registration Statement) under the applicable
Depositary Agreements, and (D) the Depositary Receipts representing the
Depositary Shares have been duly executed, countersigned, registered and
delivered in accordance with the appropriate Depositary Agreement and
the applicable definitive purchase, underwriting or similar agreement
approved by the board of directors of the Company upon payment of the
consideration therefor provided for therein, will be validly issued.
4. The Warrants, when (A) the board of directors of the Company has taken
all necessary corporate action to approve the issuance and terms of the
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offering of Warrants, and related matters, in each case so as not to
violate any applicable law or any agreement or instrument to which the
Company is a party or by which it is bound, (B) the Warrant Agreement or
Agreements relating to the Warrants have been duly executed and
delivered by the Company and the Warrant Agent appointed by the Company,
and (C) certificates representing the Warrants have been duly executed,
countersigned, registered and delivered in accordance with the
applicable definitive purchase, underwriting or similar agreement
approved by the board of directors of the Company upon payment of the
consideration therefor provided for therein, will be validly issued.
5. Each series of the Senior Debt Securities and Subordinated Debt
Securities when duly established pursuant to the term of the indenture
under which they are issued, in each case so as not to violate any
applicable law or any agreement or instrument to which the Company is a
party or by which it is bound, and duly executed, authenticated and
issued as provided in an indenture and delivered against payment
therefor, will constitute valid and legally binding obligations of the
Company entitled to the benefits of the indenture under which the
obligations are issued, subject to (i) bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium and other similar laws
now or hereafter in effect relating to or affecting creditors' rights
generally and (ii) general principles of equity (regardless of whether
considered in a proceeding at law or in equity), including the following
concepts: (i) principles governing the availability of specific
performance, injunctive relief or other traditional equitable remedies;
(ii) principles affording traditional equitable defenses (e.g., waiver
laches and estoppel); (iii) good faith and fair dealing; (iv)
reasonableness; (v) materiality of the breach; (vi) impracticability or
impossibility of performance; (vii) the effect of obstruction or failure
to perform or otherwise act in accordance with an agreement by any
person other than the Borrower; and (viii) unconscionability.
6. Each Guarantee Agreement, when it has been duly authorized, executed and
delivered by the Company and assuming due authorization, execution and
delivery by the Guarantee Trustee, will constitute a valid and legally
binding obligation of the Company, enforceable against the Company in
accordance with its terms except as the enforcement thereof may be
subject to (i) bankruptcy, insolvency, reorganization, fraudulent
transfer, moratorium and other similar laws now or hereafter in effect
relating to or affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether considered in a proceeding
at law or in equity), including the following concepts: (i) principles
governing the availability of specific performance, injunctive relief or
other traditional equitable remedies; (ii) principles affording
traditional equitable defenses (e.g., waiver laches and estoppel); (iii)
good faith and fair dealing; (iv) reasonableness; (v) materiality of the
breach;
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(vi) impracticability or impossibility of performance; (vii) the effect
of obstruction or failure to perform or otherwise act in accordance with
an agreement by any person other than the Borrower; and (viii)
unconscionability.
In rendering the opinions expressed in paragraphs 1, 2, 3, 4 and 5 above,
we have further assumed that (i) all Securities will be issued and sold in
compliance with applicable law, (ii) the Securities will be sold and delivered
to, and paid for by, the purchasers at the price and in accordance with the
terms of an agreement or agreements duly authorized and validly executed and
delivered by the parties thereto, (iii) the Company will authorize the offering
and issuance of the Securities and will authorize, approve and establish the
final terms and conditions thereof and of any applicable Warrant Agreement or
Depositary Agreement and will take any other appropriate additional corporate
action, and (iv) certificates representing the Securities will be duly executed
and delivered and, to the extent required by the applicable indenture, Warrant
Agreement or Depositary Agreement, duly authenticated and countersigned.
For purposes of paragraph 6 hereof, we have assumed that the execution and
delivery of the UnumProvident Guarantee Agreement, and any indebtedness or
obligations covered by the UnumProvident Guarantee Agreement, do not violate any
applicable law or any agreement or instrument to which the Company or the
obligor of such indebtedness or obligation is a party or by which it is bound.
We are expressing no opinion as to any obligations that parties other than
the Company may have under or in respect of the Securities or as to the effect
that their performance of such obligations may have upon any of the matters
referred to above. As to the validity and legality of the Preferred Securities,
you will be receiving the opinion of Richards, Layton & Finger, P.A., special
Delaware counsel to Trust II and Trust III, in connection with any future
offering of the Preferred Securities by either of the trusts pursuant to the
Registration Statement. We are expressing no opinion with respect to any
matters addressed in such opinion.
The foregoing opinions are limited to the federal law of the United States
of America, the General Corporation Law of the State of Delaware, and the laws
of the State of New York as it relates to the enforceability of documents,
agreements and instruments referred to herein.
We hereby consent to the incorporation by reference of this opinion into
the Registration Statement. We further consent to the reference to our firm
under the heading "Legal Matters" in the Prospectus.
This opinion is limited to the matters herein and no opinion is implied or
may be inferred beyond the matters expressly stated.
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This opinion is effective as of the date hereof and we hereby expressly
disclaim any obligation to supplement this opinion for any changes which may
occur hereafter with respect to any matters of fact or law addressed herein.
This opinion is delivered to the addressees hereof solely for their use in
connection with the transactions and matters relating to the Registration
Statement, the Securities and the Preferred Securities and may not be used or
relied upon by any other person, and may not be disclosed, quoted, filed with a
governmental agency or otherwise referred to without our prior written consent.
Very truly yours,
ALSTON & BIRD LLP
By: /s/ David E. Brown, Jr.
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A Partner
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