Exhibit 4(g)
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PROTECTIVE LIFE CORPORATION
to
AMSOUTH BANK OF ALABAMA
(as successor by Conversion of Charter to
AmSouth Bank, N.A.), as Trustee
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SUPPLEMENTAL INDENTURE No. 3
Dated as of April__, 1997
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[ ]% Subordinated Debentures
Due [ ], Series B
$ [ ]
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PROTECTIVE LIFE CORPORATION
SUPPLEMENTAL INDENTURE No. 3
$ [ ]
[ ]% Subordinated Debentures
Due [ ], Series B
SUPPLEMENTAL INDENTURE No. 3, dated as of [ ], 1997 from
PROTECTIVE LIFE CORPORATION, a Delaware corporation (the "Company"), to
AMSOUTH BANK OF ALABAMA (as successor by conversion of charter to AmSouth Bank
N.A.), as trustee (the "Trustee").
RECITALS
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The Company has heretofore executed and delivered to the Trustee a
Subordinated Indenture, dated as of June 1, 1994 as supplemented and amended
by Supplemental Indenture No. 1, dated as of June 9, 1994, and Supplemental
Indenture Xx. 0, xxxxx xx xx Xxxxxx 0, 0000 (xx so supplemented and amended,
the "Indenture"), providing for the issuance from time to time of series of
the Company's Securities.
Section 3.1 of the Indenture provides for various matters with
respect to any series of Securities issued under the Indenture to be
established in an indenture supplemental to the Indenture.
Section 8.1(7) of the Indenture provides for the Company and the
Trustee to enter into an indenture supplemental to the Indenture to establish
the form or terms of Securities of any series as provided by Sections 2.1 and
3.1 of the Indenture.
For and in consideration of the premises and the issuance of the
series of Securities provided for herein, it is mutually covenanted and
agreed as follows for the equal and ratable benefit of the Holders of the
Securities of such series:
ARTICLE 1
Relation to Indenture; Definitions
Section 1.1. This Supplemental Indenture No. 3 constitutes an integral
part of the Indenture.
Section 1.2. For all purposes of this Supplemental Indenture No. 3:
(1) Capitalized terms used herein without definition shall have the
meanings specified in the Indenture;
(2) All references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this
Supplemental Indenture No. 3; and
(3) The terms "herein", "hereof", "hereunder" and other words of
similar import refer to this Supplemental Indenture No. 3.
ARTICLE 2
The Series of Securities
Section 2.1. TITLE OF THE SECURITIES. There shall be a series of
Securities designated the "[ ]% Subordinated Debentures Due [ , 2027],
Series B" (hereinafter, the "Securities").
Section 2.2. LIMITATION ON AGGREGATE PRINCIPAL AMOUNT; DATE OF
SECURITIES. The aggregate principal amount of the Securities shall be
limited to $[ ]. Each Security shall be dated the date of its
authentication.
Section 2.3. PRINCIPAL PAYMENT DATES. Subject to Section 2.6, the
principal amount of the Securities Outstanding (together with any accrued and
unpaid interest thereon) shall be payable in a single installment on
[ , 2027].
Section 2.4. INTEREST AND INTEREST RATES. The rate of interest on
each Security shall be [ ]% per annum, accruing from [ , 1997] and,
subject to Section 2.5, interest shall be payable, in arrears, on March 31,
June 30, September 30 and December 31 of each year (each an "Interest Payment
Date"), commencing [ ].
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The amount of interest payable on any Interest Payment Date shall be computed
on the basis of twelve 30-day months and a 360-day year and, for any period
that is shorter than a full 90-day quarter, will be calculated on the basis
of the actual number of days elapsed in such period. In the event that any
date on which interest is payable on a Security is not a Business Day, then
payment of the interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is
in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and
effect as if made on such date. The interest so payable on any Security
which is punctually paid or duly provided for on any Interest Payment Date
shall be paid to the Person in whose name such Security is registered at the
close of business on the Regular Record Date for such Interest Payment Date,
which, for purposes of this Supplemental Indenture No. 3, shall be the
Business Day preceding such Interest Payment Date; provided, that in the
event the Securities shall not continue to remain in book-entry only Form,
the record dates shall be the March 15, June 15, September 15 and December 15
prior to the applicable Interest Payment Date. The interest so payable on
any Security which is not punctually paid or duly provided for on any
Interest Payment Date shall forthwith cease to be payable to the Person in
whose name such Security is registered on the relevant Regular Record Date,
and such defaulted interest shall instead be payable to the Person in whose
name such Security is registered on the special record date or other
specified date determined in accordance with the Indenture.
Section 2.5. EXTENSION OF INTEREST PAYMENT PERIOD. Notwithstanding
anything contained herein or in the Indenture to the contrary, the Company
shall have the right at any time, and from time to time, during the term of
the Securities to defer payments of interest by extending the interest
payment period to the next Interest Payment Date by one or more quarterly
periods not exceeding 20 consecutive quarters (each such period, an
"Extension Period"), but no such Extension Period may extend beyond
__________, 2027, or such other date to which the Stated Maturity may have
been shortened or extended pursuant to Section 2.6. At the end of any such
Extension Period, the Company shall pay all interest then accrued and unpaid
(including any Additional Interest, as hereinafter defined) together with
interest thereon compounded quarterly at the rate specified for the
Securities to the extent permitted by applicable law ("Compound Interest");
provided, that during any such Extension Period, (a) the Company shall not
declare or pay dividends on, make any distribution with respect to, or
redeem, purchase, acquire or make a liquidation payment with respect to any
of its capital stock (other than (i) purchases or acquisitions of shares of
the Company's common stock in connection with the satisfaction by the Company
of its obligations under any employee benefit plans or the satisfaction by
the Company of its obligation pursuant to any contract or security requiring
it to purchase shares of its common stock, (ii) as a result of a
reclassification of the Company's capital stock or the exchange or conversion
of one class or series of the Company's capital stock for another class or
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series of its capital stock, (iii) the purchase of fractional interests in
shares of the Company's capital stock pursuant to an acquisition or the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged, and (iv) redemptions or purchases pursuant to the
Company's Rights Agreement, dated August 7, 1995, between the Company and
AmSouth Bank of Alabama as Rights Agent), (b) the Company shall not make any
payment of principal, premium, if any, or interest on or repay, repurchase or
redeem any debt securities issued by the Company that rank pari passu with or
junior to the Securities and (c) the Company shall not make any guarantee
payments with respect to the foregoing (other than pursuant to the Preferred
Securities Guarantee, dated as of ________ __, 1997 of the Company (the
"Guarantee") with respect to the __% Trust Originated Preferred Securities
(the "Preferred Securities") issued by PLC Capital Trust I ("PLC Capital"),
the Common Securities Guarantee, dated as of ________, 1997 of the Company
(the "Common Guarantee," and together with the Guarantee, the "Guarantees")
with respect to the __% Trust Originated Common Securities (the "Common
Securities," and together with the Preferred Securities, the "Trust
Securities") issued by PLC Capital and the Guarantee Agreement, dated as of
June 9, 1994 of the Company (the "Series A Guarantee") with respect to the
9% Cumulative Monthly Income Preferred Securities, Series A of PLC Capital
L.L.C.). Prior to the termination of any such Extension Period, the Company
may further defer payments of interest by extending the interest payment
period; provided, however, that, such Extension Period, including all such
previous and further extensions, may not exceed 20 consecutive quarters or
beyond the Stated Maturity. Upon the termination of any Extension Period and
the payment of all amounts then due, the Company may commence a new Extension
Period, subject to the terms set forth in this section. No interest shall be
due and payable during any Extension Period, except at the end thereof, but
the Company may prepay at any time all or any portion of the interest accrued
during any Extension Period. If the Institutional Trustee (as defined in the
Amended and Restated Declaration of Trust of PLC Capital, dated as of
__________, 1997 (the "Declaration of Trust")) shall be the sole holder of
the Securities, the Company shall give the Regular Trustees (as defined in
the Declaration of Trust) and the Institutional Trustee, notice of its
selection of such Extension Period one Business Day prior to the earlier of
(i) the date distributions on the Preferred Securities are payable or (ii)
the date the Regular Trustees are required to give notice of the record date
or the date such distribution is payable to the New York Stock Exchange (or
other applicable self-regulatory organization) or to holders of the Preferred
Securities, but in any event at least one Business Day before such record
date. If the Institutional Trustee shall not be the sole holder of the
Securities, the Company shall give the holders of the Securities notice of
its selection of such Extension Period at least 10 Business Days prior to the
earlier of (i) the Interest Payment Date or (ii) the date upon which the
Company is
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required to give notice of the record or payment date of such interest
payment to the New York Stock Exchange (or other applicable self-regulatory
organization) or to holders of the Securities. The quarter in which any
notice is given pursuant to this Section 2.5 shall be counted as one of the
20 quarters permitted in the maximum Extension Period permitted hereunder.
Section 2.6. SHORTENING OR EXTENSION OF STATED MATURITY.
Notwithstanding anything contained herein or in the Indenture to the
contrary, the Company shall have the right to (i) shorten the Stated Maturity
of the principal of the Securities at any time to any date not earlier than
________, 2002, and (ii) extend the Stated Maturity of the principal of the
Securities at any time at its election for one or more periods, but in no
event to a date later than________, 2046; provided that, if the Company
elects to exercise its right to extend the Stated Maturity of the principal
of the Securities pursuant to clause (ii), above, at the time such election
is made and at the time of extension (A) the Company is not in bankruptcy,
otherwise insolvent or in liquidation, (B) the Company is not in default in
the payment of any interest or principal on the Securities, (C) in the case
of the Securities held by PLC Capital, PLC Capital is not in arrears on
payments of Distributions (as defined in the Declaration of Trust) on the
Preferred Securities and no deferred Distributions are accumulated and (D)
the Securities are rated not less than BBB- by Standard & Poor's Ratings
Services or Baa3 by Xxxxx'x Investors Service, Inc. or the equivalent by any
other nationally recognized statistical rating organization. In the event
the Company elects to shorten or extend the Stated Maturity of the Securities
as provided above, it shall give notice to the Trustee, and the Trustee shall
give notice of such shortening or extension to the Holders of the Securities,
no less than 30 and no more than 90 days prior to the effectiveness thereof.
Section 2.7. PLACE OF PAYMENT. The Place of Payment where the
Securities issued in certificated form may be presented or surrendered for
payment, where such Securities may be surrendered for registration of
transfer or exchange and where notices and demands to and upon the Company in
respect of such Securities and the Indenture may be served shall be the
Corporate Trust Office of the Trustee; provided, however, that payment of
interest may be made at the option of the Company by checks mailed to the
Holders at such addresses as shall appear in the Register. Notwithstanding
the foregoing, so long as the Holder of any Securities is the Institutional
Trustee, the payment of the principal of and interest (including Compound
Interest and Additional Interest, if any) on such Securities held by the
Institutional Trustee will be made at such place and to such account as may
be designated by the Institutional Trustee.
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Section 2.8. REDEMPTION. Subject to the terms and conditions of
Article 10 of the Indenture:
(1) OPTIONAL REDEMPTION. The Company may redeem the Securities
in whole at any time or in part from time to time, in each case on or after
_______, 2002, but prior to the Stated Maturity, upon not less than 30 nor
more than 60 days' notice, at a redemption price equal to 100% of the
principal amount of the Securities to be redeemed plus any accrued and
unpaid interest, including Additional Interest, if any, to the date fixed
for redemption (the "Redemption Price").
(2) The Company will have the right at any time to dissolve PLC
Capital and cause the Securities to be distributed to the holders of
the Trust Securities in accordance with the Declaration of Trust.
(3) TAX EVENT REDEMPTION. "Tax Event" means the receipt by the
Company of an opinion of a nationally recognized independent tax counsel
experienced in such matters to the effect that, as a result of (i) any
amendment to, or change (including any announced prospective change) in,
on or after the day before the date of issuance of the Preferred
Securities under the Declaration of Trust the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein or (ii) any interpretation or application of,
or pronouncement with respect to, such laws or regulations by any
legislative body, court, governmental agency or regulatory authority,
which amendment or change is effective or which interpretation,
application or pronouncement is announced on or after the day before the
date of issuance of the Preferred Securities under the Declaration of
Trust, there is more than an insubstantial increase in the risk that (x)
PLC Capital is, or will be within 90 days of the date thereof, subject
to U.S. federal income tax with respect to income received or accrued on
the Securities, (y) interest payable by the Company on the Securities is
not, or within 90 days of the date thereof, will not be, deductible, in
whole or in part, for U.S. federal income tax purposes, or (z) PLC
Capital is, or will be within 90 days of the date thereof, subject to
more than a de minimis amount of other taxes, duties or other
governmental charges.
"Redemption Tax Opinion" means an opinion of nationally recognized
independent tax counsel experienced in such matters that, as a result of
a Tax Event, there is more than an insubstantial risk that the Company
would be precluded from deducting the interest on the Subordinated Debt
Securities, in whole or in part, for United States federal income tax
purposes, even if the Subordinated Debt Securities were distributed to
the holders of the Trust Securities in liquidation of such holders'
interest in PLC Capital, pursuant to the exercise by the Company of its
right to dissolve PLC Capital as provided in the Declaration of Trust.
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If, at any time, a Tax Event shall occur and be continuing and the
Company shall have received a Redemption Tax Opinion, the Company shall
have the right, upon not less than 30 nor more than 60 days notice, to
redeem the Securities in whole or in part, for cash in the amount of the
Redemption Price, within 90 days following the occurrence of such Tax
Event, and, following such redemption, Trust Securities with an
aggregate liquidation amount equal to the aggregate principal amount of
the Securities so redeemed shall be redeemed by the Trust at the
Redemption Price on a pro rata basis; provided, however, that if at the
time there is available to the Company or the Trust the opportunity to
eliminate, within such 90 day period, the Tax Event by taking some
ministerial action, such as filing a form or making an election or
pursuing some other similar reasonable measure that has no adverse
effect on the Trust, the Company or the holders of the Trust Securities,
the Company or the Trust will pursue such measure in lieu of a
redemption. If the Company does not elect either to distribute the
Securities to the holders of the Preferred Securities in liquidation of
PLC Capital or to redeem the Securities, the Trust Securities shall
remain outstanding and, in the event a Tax Event is continuing,
Additional Interest will be payable on the Securities.
(4) The Securities are not entitled to the benefit of any sinking fund.
(5) If Securities are distributed to the holders of the Preferred
Securities, (i) the Company will use its best efforts to cause the
Securities to be listed on the New York Stock Exchange or on such other
exchange as the Preferred Securities are then listed, and (ii) the
Indenture, this Supplemental Indenture No. 3 and the terms of the
Securities may, thereafter, be modified or amended with the consent of
not less than 66-2/3% in principal amount of the Securities at any time
outstanding, provided, however, that no such modification or amendment
may, without the consent of the Holder of each Security affected
thereby, (a) extend the stated maturity of the principal of any Security
(other than as provided in Section 2.6 of this Supplemental Indenture
No. 3), or reduce the principal amount thereof or reduce the rate or
extend the time of payment of interest thereon, or reduce any amount
payable on redemption thereof or change the currency in which the prin
cipal thereof or interest thereon is payable or impair the right to
institute suit for the enforcement of any payment on any Security when
due or (b) reduce the aforesaid principal amount of
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Securities, the consent of the Holders of which is required for any such
modification.
Section 2.9. PREFERRED SECURITY HOLDERS' RIGHTS. If an Event of
Default constituting the failure to pay interest or principal on the
Debentures on the date such interest or principal is otherwise payable has
occurred and is continuing, then a holder of Preferred Securities may
directly institute a proceeding for enforcement of payment to such holder
directly of the principal of or interest on the Securities having a principal
amount equal to the aggregate liquidation amount of the Preferred Securities
of such holder on or after the respective due date specified in the
Securities. The holders of Preferred Securities will not be able to exercise
directly any other remedy available to the holders of the Securities under
this Supplemental Indenture No. 3 or under the Indenture unless the
Institutional Trustee fails to do so.
Section 2.10. ADDITIONAL COVENANTS. The Company agrees that if (i)
there shall have occurred any event that would constitute an Event of Default
(as defined herein) or (ii) the Company shall be in default with respect to
its payment of any obligations under the Guarantee or Common Securities
Guarantee, or (iii) the Company shall have given notice of its election to
defer payments of interest on such Securities by extending the interest
payment period as provided in this Supplemental Indenture No. 3 and such
period, or any extension thereof, shall be continuing, then (a) the Company
shall not declare or pay any dividend on, make any distribution with respect
to, or redeem, purchase, acquire or make a liquidation payment with respect
to any of its capital stock (other than (i) purchases or acquisitions of
shares of the Company's Common Stock in connection with the satisfaction by
the Company of its obligations under any employee benefit plans or the
satisfaction by the Company of its obligation pursuant to any contract or
security requiring it to purchase shares of its common stock, (ii) as a
result of a reclassification of the Company's capital stock or the exchange
or conversion of one class or series of the Company's capital stock for
another class or series of its capital stock, (iii) the purchase of
fractional interests in shares of the Company's capital stock pursuant to an
acquisition or the conversion or exchange provisions of such capital stock or
the security being converted or exchanged, and (iv) redemptions or purchases
pursuant to the Company's Rights Agreement, dated August 7, 1995, between the
Company and AmSouth Bank of Alabama as Rights Agent), (b) the Company shall
not make any payment of principal, premium, if any, or interest on or repay,
repurchase or redeem any debt securities issued by the Company that rank pari
passu with or junior to the Securities and (c) the Company shall not make any
guarantee payments with respect to the foregoing (other than pursuant to
either of the Guarantees or the Series A Guarantee).
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The Company agrees (i) to directly or indirectly maintain 100% ownership
of the Common Securities; provided, however, that any permitted successor of
the Company under the Indenture may succeed to the Company's ownership of
such Common Securities, (ii) not to voluntarily terminate, wind-up or
liquidate PLC Capital, except (a) in connection with a distribution of
Securities to the holders of the Preferred Securities in liquidation of PLC
Capital, or (b) in connection with certain mergers, consolidations or
amalgamations permitted by the Declaration of Trust and (iii) to use its
reasonable efforts, consistent with the terms and provisions of the
Declaration of Trust, to cause PLC Capital to remain a grantor trust and not
to be classified as an association taxable as a corporation for United States
federal income tax purposes.
Section 2.11. DENOMINATION. The Securities shall be issuable in
denominations of $[25] and integral multiples thereof.
Section 2.12. CURRENCY. Principal and interest on the Securities
shall be payable in Dollars.
Section 2.13. REGISTERED SECURITIES; FORM. Except as provided in
Section 2.14, the Securities shall be issued as Registered Securities,
without coupons and shall be registered in the name of PLC Capital and its
permitted registered assigns. The Securities shall be substantially in the
form attached as Exhibit A hereto.
Section 2.14. GLOBAL SECURITIES UPON LIQUIDATION OF TRUST.
(a) if, in accordance with the Declaration of Trust, PLC Capital is
to be dissolved and the Securities held by the Institutional Trustee are to
be distributed to the holders of the Trust Securities,
(i) the Securities in certificated form shall be presented to the
Trustee by the Institutional Trustee in exchange for a global Security in an
aggregate principal amount equal to the aggregate principal amount of all
outstanding Securities (a "Global Security") to be registered in the name of
the Depository (as defined in the Declaration of Trust), or its nominee, and
delivered by the Trustee to the Depository for crediting to the accounts of
its participants pursuant to the instructions of the Regular Trustees (as
defined in the Declaration of Trust). The Company upon any such presentation
shall execute a Global Security in such aggregate principal amount and
deliver the same to the Trustee for authentication and delivery in accordance
with the Indenture and this Supplemental Indenture No. 3. Payments on
Securities issued as Global Securities will be made to the Depository; and
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(ii) if any Preferred Securities are held in non book-entry
certificated form, the Securities in certificated form may be presented to
the Trustee by the Institutional Trustee and any Preferred Security
Certificate (as defined in the Declaration of Trust) which represents
Preferred Securities other than Preferred Securities held by the Clearing
Agency (as defined in the Declaration of Trust) or its nominee ("Non
Book-Entry Preferred Securities") will be deemed to represent beneficial
interests in Securities presented to the Trustee by the Institutional Trustee
having an aggregate principal amount equal to the aggregate liquidation
amount of the Non Book-Entry Preferred Securities until such Preferred
Security Certificates are presented to the Registrar for transfer or
reissuance at which time such Preferred Security Certificates will be
cancelled and a Security, registered in the name of the holder of the
Preferred Security Certificate or the transferee of the holder of such
Preferred Security Certificate, as the case may be, with an aggregate
principal amount equal to the aggregate liquidation amount of the Preferred
Security Certificate cancelled, will be executed by the Company and delivered
to the Trustee for authentication and delivery in accordance with the
Indenture and this Supplemental Indenture No. 3. On issue of such
Securities, Securities with an equivalent aggregate principal amount that
were presented by the Institutional Trustee to the Trustee will be deemed to
have been cancelled.
(b) Unless and until it is exchanged for the Securities in
registered form, a Global Security may be transferred, in whole but not in
part, only to another nominee of the Depository, or to a successor Depository
selected or approved by the Company or to a nominee of such successor
Depository.
(c) If at any time the Depository notifies the Company that it is
unwilling or unable to continue as Depository or if at any time the
Depository for such series shall no longer be registered or in good standing
under the Securities Exchange Act of 1934, as amended, or other applicable
statute or regulation, and a successor Depository for such series is not
appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such condition, as the case may be, the Company
will execute, and, subject to Article III of the Indenture, the Trustee, upon
written notice from the Company, will authenticate and deliver the Securities
in definitive registered form without coupons, in authorized denominations,
and in an aggregate principal amount equal to the principal amount of the
Global Security in exchange for such Global Security. In addition, the
Company may at any time determine that the Securities shall no longer be
represented by a Global Security. In such event the Company will execute,
and subject to Section 3.1 of the Indenture, the Trustee, upon receipt of an
Officer's Certificate evidencing such determination by the Company, will
authenticate and deliver the Securities in definitive registered form
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without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Security in exchange for
such Global Security. Upon the exchange of the Global Security for such
Securities in definitive registered form without coupons, in authorized
denominations, the Global Security shall be cancelled by the Trustee. Such
Securities in definitive registered form issued in exchange for the Global
Security shall be registered in such names and in such authorized
denominations as the Depository, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Securities to the Depository for delivery to the Persons
in whose names such Securities are so registered.
Section 2.15. DEFEASANCE AND COVENANT DEFEASANCE. The provisions of
Sections 4.4 and 4.5 of the Indenture shall apply to the Securities.
Section 2.16. REGISTRAR AND PAYING AGENT. The Trustee shall
initially serve as Registrar and Paying Agent.
Section 2.17. ADDITIONAL PROVISIONS REGARDING AMENDMENTS. So long
as the Holder of the Securities is PLC Capital, the terms of the Securities
may be amended by mutual consent of the Company and PLC Capital in the manner
they shall agree; provided, however, that, so long as any of the Preferred
Securities remain outstanding, no such amendment shall be made that adversely
affects the holders of the Preferred Securities, other than as otherwise
provided for in this Supplemental Indenture No. 3, no termination of the
Securities shall occur, and no Event of Default or compliance with any
covenant under the Securities may be waived by PLC Capital, without the prior
approval of the holders of at least 66-2/3% in liquidation preference of all
Preferred Securities then outstanding, in writing or at a duly constituted
meeting of such holders.
Section 2.18. ADDITIONAL PROVISIONS REGARDING ASSIGNMENT. The
Company shall have the right at all times to assign any of its rights or
obligations under the Securities to a direct or indirect wholly-owned
subsidiary of the Company; provided, however, that, in the event of any such
assignment, the Company shall remain jointly and severally liable for all
such obligations. So long as PLC Capital is the Holder of the Securities,
PLC Capital may not assign any of its rights under the Securities, other than
in connection with a merger or consolidation or sale of assets or exchange
permitted under the terms of the Preferred Securities. Subject to the
foregoing, the Securities shall be binding upon and inure to the benefit of
the Company and PLC Capital and their respective permitted successors and
assigns. Any assignment by the Company or PLC Capital in contravention of
such provisions will be null and void.
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Section 2.19. MISCELLANEOUS EXPENSES.
(a) In connection with the offering, sale and issuance of the
Securities to the Institutional Trustee and in connection with the sale of
the Trust Securities by PLC Capital, the Company, in its capacity as borrower
with respect to the Securities, shall pay (i) all costs and expenses relating
to the offering, sale and issuance of the Trust Securities and the
Securities, including commissions to the underwriters payable pursuant to the
Purchase Agreement and compensation of the Trustee under the Indenture, (ii)
all costs and expenses of PLC Capital (including, but not limited to, costs
and expenses relating to the organization of PLC Capital, the offering sale
and issuance of the Trust Securities (including commissions to the
underwriters in connection therewith), the fees and expenses of the
Institutional Trustee and the Delaware Trustee, the costs and expenses
relating to the operation of PLC Capital Trust, including, without
limitation, costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and computing or
accounting equipment, paying agent(s), registrar(s), transfer agent(s),
duplicating, travel and telephone and other telecommunications expenses and
costs and expenses incurred in connection with the acquisition, financing,
and disposition of PLC Capital's assets), and (iii) the enforcement by the
Institutional Trustee (as defined in the Declaration of Trust) of the rights
of the holders of the Preferred Securities. The Company fully and
unconditionally guarantees the payment of such expenses.
(b) If at any time PLC Capital shall be required to pay any taxes,
duties, assessments or governmental charges of whatever nature (other than
withholding taxes) imposed by the United States, or any other domestic taxing
authority, then, in any such case, the Company agrees to pay, as additional
interest ("Additional Interest") such additional amounts as shall be required
so that the net amounts received and retained by PLC Capital with respect to
the Securities after paying any such taxes, duties, assessments or other
governmental charges, as well as all liabilities, costs and expenses of PLC
Capital with respect to any such items, will be not less than the amounts PLC
Capital would have received had no such taxes, duties, assessments or other
governmental charges been imposed and had no such liabilities, costs and
expenses with respect thereto been incurred.
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ARTICLE 3
Miscellaneous Provisions
Section 3.1. The Indenture, as supplemented and amended by this
Supplemental Indenture No. 3, is in all respects hereby adopted, ratified and
confirmed.
Section 3.2. This Supplemental Indenture No. 3 may be executed in
any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
SECTION 3.3. THIS SUPPLEMENTAL INDENTURE NO. 3 AND EACH SECURITY
SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK
AND SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture No. 3 to be duly executed, as of the day and year first written
above.
PROTECTIVE LIFE CORPORATION
By:
-----------------------
Name:
Title:
By:
-----------------------
Name:
Title:
[Seal]
Attest: ------------------------
Name:
Title:
AMSOUTH BANK OF ALABAMA, Trustee
By:
-----------------------
Name:
Title:
[Seal]
Attest:
----------------------
Name:
Title:
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Exhibit A
[FORM OF FACE OF SERIES B SUBORDINATED DEBENTURE]
THIS SERIES B SUBORDINATED DEBENTURE IS REGISTERED IN THE NAME OF PLC
CAPITAL TRUST I AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF
OTHER THAN AS PERMITTED IN THE SUPPLEMENTAL INDENTURE NO. 3 DATED AS OF
[ ], A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY.
[IF THE SUBORDINATED DEBENTURE IS TO BE A GLOBAL SECURITY INSERT -
This Subordinated Debenture is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depository or a nominee of a Depository. This Subordinated Debenture is
exchangeable for Subordinated Debentures registered in the name of a person
other than the Depository or its nominee only in the limited circumstances
described in the Indenture, and no transfer of this Subordinated Debenture
(other than a transfer of this Subordinated Debenture as a whole by the
Depository to a nominee of the Depository to the Depository or another
nominee of the Depository) may be registered except in limited circumstances.
Unless this Subordinated Debenture is presented by an authorized
representative of The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx) to the issuer or its agent for registration of transfer, exchange
or payment, and any Subordinated Debenture issued is registered in of Cede &
Co. or such other name as requested by an authorized representative of The
Depository Trust Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an interest
herein.]
PROTECTIVE LIFE CORPORATION
[ ]% Subordinated Debentures
Due [ ], Series B
No. 1 $[ ]
PROTECTIVE LIFE CORPORATION, a corporation duly organized and
existing under the laws of the State of Delaware (herein called the
"Company", which term includes any successor corporation under the Indenture
(as defined on the reverse hereof)), for value received, hereby promises to
pay to Wilmington Trust company, as Institutional Trustee (as defined below),
for the benefit of PLC Capital Trust I or permitted registered assigns, the
principal sum of $[ ] Dollars on [ ] (or such other date to
which the stated maturity of this Subordinated Debenture may be shortened or
extended, as described below) and to pay interest thereon from [ ].
Interest shall be payable on this Subordinated Debenture, in arrears, on
March 31, June 30, September 30 and December 31 of each year (each an
"Interest Payment Date") commencing [ ], at the rate of [ ]% per
annum, until the principal hereof is paid or made available for payment;
provided that any such installment of interest, which is overdue shall bear
interest at the rate of [ ]% per annum (to the extent that the payment of
such interest shall be legally enforceable) from the dates such amounts are
due until they are paid or made available for payment, and such interest
shall be payable on demand; provided further that, notwithstanding anything
contained in the Indenture and Supplemental Indenture No. 3 (as defined on
the reverse hereof) to the contrary, the Company shall have the right at any
time, and from time to time, during the term of this Security to defer
payments of interest by extending the interest payment period to the next
Interest Payment Date by one or more quarterly periods not exceeding 20
consecutive quarters (each such period, an "Extension Period"), but no such
Extension Period may extend beyond __________, 2027, or such other date to
which the Stated Maturity may have been shortened or extended as described
below.
At the end of any such Extension Period, the Company shall pay all interest
then accrued and unpaid (including any Additional Interest, as hereinafter
defined) together with interest thereon compounded quarterly at the rate
specified for the Securities to the extent permitted by applicable law;
provided, that during any such Extension Period, (a) the Company shall not
declare or pay dividends on, make any distribution with respect to, or
redeem, purchase, acquire or make a liquidation payment with respect to any
of its capital stock (other than (i) purchases or acquisitions of shares of
the Company's common stock in connection with the satisfaction by the Company
of its obligations under any employee benefit plans or the satisfaction by
the Company of its obligation pursuant to any contract or security requiring
it to purchase shares of its common stock, (ii) as a result of a
reclassification of the Company's capital stock or the exchange or conversion
of one class or series of the Company's capital stock for another class or
series of its capital stock, (iii) the purchase of fractional interests in
shares of the Company's capital stock pursuant to an acquisition or the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged, and (iv) redemptions or purchases pursuant to the
Company's Rights Agreement, dated August 7, 1995, between the Company and
AmSouth Bank of Alabama as Rights Agent), (b) the Company shall not make any
payment of principal, premium, if any, or interest on or repay, repurchase or
redeem any debt securities issued by the Company that rank pari passu with or
junior to the Securities and (c) the Company shall not make any guarantee
payments with respect to the foregoing (other than pursuant to the Preferred
Securities Guarantee, dated as of ________ __, 1997 of the Company (the
"Guarantee") with respect to the __% Trust Originated Preferred Securities
(the "Preferred Securities") issued by PLC Capital Trust I ("PLC Capital"),
the Common Securities Guarantee, dated as of ________, 1997 of the Company
(the "Common Guarantee," and together with the Guarantee, the "Guarantees")
with respect to the __% Trust Originated Common Securities (the "Common
Securities," and together with the Preferred Securities, the "Trust
Securities") issued by PLC Capital and the Guarantee Agreement, dated as of
June 9, 1994 of the Company (the "Series A Guarantee") with respect to the
9% Cumulative Monthly Income Preferred Securities, Series A of PLC Capital
L.L.C.). Prior to the termination of any such Extension Period, the Company
may further defer payments of interest by extending the interest payment
period; provided, however, that, such Extension Period, including all such
previous and further extensions, may not exceed 20 consecutive quarters or
beyond the Stated Maturity. Upon the termination of any Extension Period and
the payment of all amounts then due, the Company may commence a new Extension
Period, subject to the terms set forth below. No interest shall be due and
payable during any Extension Period, except at the end thereof, but the
Company may prepay at any time all or any portion of the interest accrued
during any Extension Period. If the Institutional Trustee (as defined in the
Amended and Restated Declaration of Trust
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of PLC Capital (the "Declaration of Trust") shall be the sole holder of the
Securities, the Company shall give the Regular Trustees (as defined in the
Declaration of Trust) and the Institutional Trustee (as defined in the
Declaration of Trust), notice of its selection of such Extension Period one
Business Day prior to the earlier of (i) the date distributions on the
Preferred Securities are payable or (ii) the date the Regular Trustees are
required to give notice of the record date or the date such distribution is
payable to the New York Stock Exchange (or other applicable self-regulatory
organization) or to holders of the Preferred Securities, but in any event at
least one Business Day before such record date. If the Institutional Trustee
shall not be the sole holder of the Securities, the Company shall give the
holders of the Securities notice of its selection of such Extension Period at
least 10 Business Days prior to the earlier of (i) the Interest Payment Date
or (ii) the date upon which the Company is required to give notice of the
record or payment date of such interest payment to the New York Stock
Exchange (or other applicable self-regulatory organization) or to holders of
the Securities. The quarter in which any notice is given in accordance with
the foregoing provisions Section 2.5 shall be counted as one of the 20
quarters permitted in the maximum Extension Period permitted hereunder.
The Company shall have the right to (i) shorten the stated maturity
of the principal of this Subordinated Debenture at any time to any date not
earlier than ________, 2002, and (ii) extend the stated maturity of the
principal of this Subordinated Debenture at any time at its election for one
or more periods, but in no event to a date later than________, 2046; provided
that, if the Company elects to exercise its right to extend the stated
maturity of the principal of this Subordinated Debenture pursuant to clause
(ii), above, at the time such election is made and at the time of extension
(A) the Company is not in bankruptcy, otherwise insolvent or in liquidation,
(B) the Company is not in default in the payment of any interest or principal
on the Securities, (C) in the case of the Securities held by PLC Capital
Trust I ("PLC Capital"), PLC Capital is not in arrears on payments of
Distributions (as defined in the Amended and Restated Declaration of Trust of
PLC Capital) on the __% Trust Originated Preferred Securities of PLC Capital
and no deferred Distributions are accumulated and (D) the Securities are
rated not less than BBB- by Standard & Poor's Ratings Services or Baa3 by
Xxxxx'x Investors Service, Inc. or the equivalent by any other nationally
recognized statistical rating organization. In the event the Company elects
to shorten or extend the stated maturity of this Subordinated Debenture as
provided above, it shall give notice to the Trustee, and the Trustee shall
give notice of such shortening or extension to the Holder hereof, no less
than 30 and no more than 90 days prior to the effectiveness thereof.
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The amount of interest payable on any Interest Payment Date shall be
computed on the basis of twelve 30-day months and a 360-day year and, for any
period that is shorter than a full calendar month, will be calculated on the
basis of the actual number of days elapsed in such period. In the event that
any date on which interest is payable on this Security is not a Business Day,
then payment of the interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is
in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and
effect as if made on such date. The interest so payable on any Interest
Payment Date which is punctually paid or duly provided for on any Interest
Payment Date will, as provided in the Indenture referred to on the reverse
hereof, be paid to the Person in whose name this Subordinated Debenture is
registered at the close of business on the Regular Record Date for such
Interest Payment Date, which shall be the Business Day next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Person in whose name
this Security is registered on the relevant Regular Record Date, and such
defaulted interest shall instead be payable to the person in whose name this
Subordinated Debenture is registered on the special record date for such
defaulted interest or other specified date determined in accordance with the
Indenture and the Supplemental Indenture No. 3 referred to on the reverse
hereof.
Payment of the principal of and any such interest on this
Subordinated Debenture will be made at the Corporate Trust Office of the
Trustee, in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts,
provided, however, that at the option of the Company payment of interest may
be paid (i) by check mailed to the address of the person entitled thereto as
such address shall appear in the Register of Holders of the Subordinated
Debentures or (ii) by wire transfer to an account maintained by the Person
entitled thereto as specified in the Register of Holders of the Securities.
Reference is hereby made to the further provisions of this
Subordinated Debenture set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Subordinated Debenture shall not be entitled to any benefit under the
Indenture and Supplemental Indenture No. 3 referred to on the reverse hereof
or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
Dated:
PROTECTIVE LIFE CORPORATION
By
---------------------------
By
---------------------------
[CORPORATE SEAL]
This is one of the Securities of the series described in the
within-mentioned Indenture.
AMSOUTH BANK OF ALABAMA, as Trustee
By
---------------------------
Authorized Signatory
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[FORM OF REVERSE OF SERIES B SUBORDINATED DEBENTURE]
This Subordinated Debenture is one of a duly authorized issue of
securities of the Company (herein called the "Securities"), issued and to be
issued in one or more series under a Subordinated Indenture, dated as of June
1, 1994 (herein, together with all indentures supplemental thereto, including
Supplemental Indenture No. 1, dated as of June 9, 1994, Supplemental
Indenture No. 2, dated August 1, 1994 and Supplemental Indenture No. 3, dated
April _, 1997 called the "Indenture"), from the Company to AmSouth Bank of
Alabama (successor by conversion of charter to AmSouth Bank N.A.) (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee, the holders of Senior Indebtedness
and the Holders of the Securities and of the terms upon which the Securities
are, and are to be, authenticated and delivered. This Security is one of the
series designated on the face hereof, limited in aggregate principal amount
to $[ ] and is issued pursuant to Supplemental Indenture No. 3, dated
as of [ ] from the Company to the Trustee, relating to the Securities of
this series (herein called "Supplemental Indenture No. 3").
The indebtedness evidenced by this Security is to the extent provided
in the Indenture, subordinate and junior in right of payment to all Senior
Indebtedness, and this Security is issued subject to the provisions of the
Indenture with respect thereto. Each holder of this Security, by accepting
the same, (a) agrees to and shall be bound by such provisions, (b) authorizes
and directs the Trustee on his behalf to take such action as may be necessary
or appropriate to acknowledge or effectuate the subordination so provided and
(c) appoints the Trustee his attorney-in-fact for any and all such purposes.
Each Holder hereof, by his acceptance hereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such holder upon said
provisions.
The Securities of this series are subject to redemption at any time
in whole or from time to time in part, on or after [ , 2002],
but prior to their stated maturity (or such other date to which the stated
maturity of this Subordinated Debenture may be shortened or extended, as
described on the face of this Subordinated Debenture), or, in whole at any
time or in part from time to time if a Tax Event shall have occurred and the
Company has received a Redemption Tax Opinion, upon not less than 30 nor more
than 60 days notice, at a redemption price equal to 100% of the principal
amount to be redeemed plus any accrued and unpaid interest, including
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Additional Interest, if any, to the redemption date within 90 days following
the occurrence of such Tax Event; provided, however, that if at the time
there is available to the Company or PLC Capital the opportunity to
eliminate, within such 90 day period, the Tax Event by taking some
ministerial action, such as filing a form or making an election or pursuing
some other similar reasonable measure that has no adverse effect on the
Trust, the Company or the holders of the Trust Securities, the Company or PLC
Capital will pursue such measure in lieu of redemption.
In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
If an Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture.
The Indenture contains provisions for defeasance at any time of the
indebtedness of this Security or of certain restrictive covenants and Events
of Default with respect to this Security, in each case upon compliance by the
Company with certain conditions set forth therein, which provisions apply to
this Security.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Company and the rights of the Holders of the Securities of each series to
be affected under the Indenture at any time by the Company and the Trustee
with the consent of the Holders of at least a majority in aggregate principal
amount of the Securities at the time outstanding of each series to be
affected. The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such
series, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of the Security shall
be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Security.
No reference herein to the Indenture or to Supplemental Indenture No.
3 and no provision of this Security or of the Indenture or of Supplemental
Indenture No. 3 shall alter or impair the obligation of the Company, which is
absolute and
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unconditional, to pay the principal of, and interest on, this Security at the
times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations as
therein set forth, the transfer of this Security is registrable in the
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and
interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company, the
Trustee and the Registrar duly executed by the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Securities of this
series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $[ ] and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the person in whose name this Security is registered as the
owner hereof for all purposes, whether or not the Security be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
The Company and the Holder of this Security agree (i) that for United
States federal, state and local tax purposes it is intended that this
Security constitute indebtedness and (ii) to file all United States federal,
state and local tax returns and reports on such basis (unless the Company or
such Holder, as the case may be, shall have received an opinion of
independent nationally recognized tax counsel to the effect that as a result
of a change in law after the date of the issuance of this Security the
Company or such Holder, as the case may be, is prohibited from filing on such
basis).
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
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