EXHIBIT 1.1
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PLC CAPITAL TRUST IV
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7.25% Trust Originated Preferred Securities-SM-*
("TOPrS-SM-")
guaranteed to a limited extent by
PROTECTIVE LIFE CORPORATION
PURCHASE AGREEMENT
Dated: September 20, 2002
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* -SM-"Trust Originated Preferred Securities" and "TOPrS" are service marks of
Xxxxxxx Xxxxx & Co., Inc.
4,000,000 Preferred Securities
PLC CAPITAL TRUST IV
(A Delaware Trust)
7.25% Trust Originated Preferred Securities-SM- ("TOPrS-SM-"*)
(Liquidation Amount of $25.00 per Preferred Security)
PURCHASE AGREEMENT
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September 20, 2002
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & -SM-ith Incorporated
X.X. Xxxxxxx & Sons, Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
Wachovia Securities, Inc.
Xxxxxx Xxxxxx & Company, Inc.
SunTrust Capital Markets, Inc.
as Representatives of the several Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & -SM-ith Incorporated
Xxxxxxx Xxxxx World Headquarters
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
PLC Capital Trust IV (the "Trust"), a statutory trust organized under the
Statutory Trust Act (the "Delaware Act") of the State of Delaware (Chapter 38,
Title 12, of the Delaware Code, 12 Del. C. Sections 3801 et seq.), and
Protective Life Corporation, a Delaware corporation (the "Company" and, together
with the Trust, the "Offerors"), confirm their agreement (the "Agreement") with
Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & -SM-ith Incorporated
("Xxxxxxx Xxxxx"), X.X. Xxxxxxx & Sons, Inc., Xxxxxx Xxxxxxx & Co. Incorporated,
Wachovia Securities, Inc., Xxxxxx Xxxxxx & Company, Inc. and SunTrust Capital
Markets, Inc., as representatives (in such capacity, collectively, the
"Representatives") of the several Underwriters named in Schedule A hereto
(collectively, the "Underwriters," which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof) with respect to the
sale by the Trust and the purchase by the Underwriters, acting severally and not
jointly, of an aggregate of 4,000,000 7.25% Trust Originated Preferred
Securities (liquidation amount of $25 per preferred security) of the Trust (the
"Initial Securities") and an additional 600,000 7.25% Trust Originated Preferred
Securities of the Trust which the Underwriters have the option to purchase on
the terms set forth in Section 2(b) hereof (the "Option Securities" and,
together with the Initial Securities, the "Preferred Securities". The Preferred
Securities will be guaranteed by the Company with respect to distributions and
payments upon liquidation, redemption and otherwise (the "Preferred Securities
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* -SM-"Trust Originated Preferred Securities" and "TOPrS" are service marks of
Xxxxxxx Xxxxx & Co., Inc.
Guarantee") pursuant to the Preferred Securities Guarantee Agreement, to be
dated as of September 25, 2002 (the "Preferred Securities Guarantee Agreement"),
between the Company and Wilmington Trust Company, as trustee (the "Guarantee
Trustee"), and in certain circumstances described in the Prospectus (as defined
herein) the Trust will distribute Subordinated Debt Securities (as defined
herein) to holders of Preferred Securities. The Preferred Securities, the
related Preferred Securities Guarantee and the Subordinated Debt Securities are
collectively referred to herein as the "Securities."
Prior to the purchase and public offering of the Preferred
Securities by the several Underwriters, the Offerors and the Representatives,
acting on behalf of the several Underwriters, shall enter into an agreement
substantially in the form of Exhibit A hereto (the "Pricing Agreement"). The
Pricing Agreement may take the form of an exchange of any standard form of
written telecommunication between the Offerors and the Representatives and shall
specify such applicable information as is indicated in Exhibit A hereto. The
offering of the Preferred Securities will be governed by this Agreement, as
supplemented by the Pricing Agreement. From and after the date of the execution
and delivery of the Pricing Agreement, this Agreement shall be deemed to
incorporate the Pricing Agreement.
The Offerors have filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-80769) covering the registration under the Securities Act of 1933, as
amended (the "1933 Act"), of the sale of securities of the Company, the Trust
and certain other statutory trusts organized under the Delaware Act, including
the Securities, have filed such amendments thereto, if any, as may have been
required to the date hereof, and will file such additional amendments thereto as
may hereafter be required. Promptly after the execution and delivery of this
Agreement, the Offerors will prepare and file a prospectus in accordance with
the provisions of Rule 430A ("Rule 430A") of the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations") and paragraph (b) of
Rule 424 ("Rule 424(b)") of the 1933 Act Regulations. The information included
in such prospectus that was omitted from such registration statement at the time
it became effective but that is deemed part of such registration statement at
the time it became effective pursuant to paragraph (b) of Rule 430A is referred
to as "Rule 430A Information." Any prospectus that omitted the Rule 430A
Information that was used after such effectiveness and prior to the execution
and delivery of this Agreement is herein called a "preliminary prospectus." Such
registration statement, excluding the exhibits thereto and schedules thereto, if
any, but including the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the 1933 Act, at the time it became effective and
including the Rule 430A Information is herein called the "Registration
Statement." The final prospectus, including the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, in the
form first furnished to the Underwriters for use in connection with the offering
of the Securities is herein called the "Prospectus." For purposes of this
Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system ("XXXXX").
All references in this Agreement to financial statements and
schedules and other information that is "contained," "included" or "stated" in
the Registration Statement, any preliminary prospectus or the Prospectus (and
all other references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information that are
in-
corporated by reference in the Registration Statement, any preliminary
prospectus or the Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to mean and include the
filing of any document under the Securities Exchange Act of 1934, as amended
(the "1934 Act"), that is incorporated by reference in the Registration
Statement, such preliminary prospectus or the Prospectus, as the case may be.
The Offerors understand that the Underwriters propose to make
a public offering of the Securities as soon as the Representatives deem
advisable after this Agreement and the Pricing Agreement have been executed and
delivered. The entire proceeds to the Trust from the sale of the Preferred
Securities will be combined with the entire proceeds from the sale by the Trust
to the Company of its common securities (the "Common Securities" and, together
with the Preferred Securities, the "Trust Securities"), as guaranteed by the
Company, to the extent set forth in the Prospectus, with respect to
distributions and payments upon liquidation and redemption (the "Common
Securities Guarantee" and together with the Preferred Securities Guarantee, the
"Guarantees") pursuant to the Common Securities Guarantee Agreement, to be dated
as of August 22, 2001 (the "Common Securities Guarantee Agreement" and, together
with the Preferred Securities Guarantee Agreement, the "Guarantee Agreements"),
between the Company and the Guarantee Trustee, as Trustee, and will be used by
the Trust to purchase the $103,093,000 aggregate principal amount of 7.25%
Subordinated Debentures due 2032, Series E (the "Subordinated Debt Securities")
to be issued by the Company under the Indenture (as defined herein). The
Preferred Securities and the Common Securities will be issued pursuant to the
amended and restated declaration of trust of the Trust, dated as of September
25, 2002 (the "Declaration"), among the Company, as Sponsor, Xxxxxxx Xxxxxx and
Xxxxx X. XxXxxx, as trustees (the "Regular Trustees"), and Wilmington Trust
Company, as institutional trustee (the "Institutional Trustee") and as Delaware
trustee (the "Delaware Trustee" and, together with the Institutional Trustee and
the Regular Trustees, the "Trustees"). The Subordinated Debt Securities will be
issued pursuant to the Subordinated Indenture dated as of June 1, 1994 (the
"Base Indenture"), between the Company and The Bank of New York (as successor to
AmSouth Bank), as trustee (the "Debt Trustee"), as supplemented by (i)
Supplemental Indenture No. 1, dated as of June 9, 1994 ("Supplemental Indenture
No. 1"), (ii) Supplemental Indenture No. 2, dated as of August 1, 1994
("Supplemental Indenture No. 2"), (iii) Supplemental Indenture No. 3, dated as
of April 29, 1997 ("Supplemental Indenture No.3"), (iv) Supplemental Indenture
No. 4, dated as of November 20, 1997 ("Supplemental Indenture No.4"), (v)
Supplemental Indenture No. 5, dated as of August 22, 2001 ("Supplemental
Indenture No.5") and (vi) Supplemental Indenture No. 6, to be dated as of
September 25, 2002 ("Supplemental Indenture No. 6" 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 Debt Trustee.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) The Offerors jointly and severally represent and warrant
to each Underwriter as of the date hereof, as of the date of the Pricing
Agreement (such latter date being hereinafter referred to as the "Representation
Date") and as of the Closing Time and each Date of Delivery, each as referred to
in Section 2 hereof as follows:
(i) The Offerors meet, and at the respective times of the
commencement and consummation of the public offering of the Securities will
meet, the requirements for use of Form S-3 under the 1933 Act. The Registration
Statement has become effective under the 1933 Act. No stop order suspending the
effectiveness of the Registration Statement has been issued and no proceeding
for that purpose has been initiated or, to the knowledge of the Offerors,
threatened by the Commission.
(ii) At the respective times the Registration Statement and
any post-effective amendment thereto (including the filing of any amendment to
the Company's most recent Annual Report on Form 10-K with the Commission) became
effective, at the Representation Date and at the Closing Time and each Date of
Delivery, such Registration Statements and such amendments and supplements
thereto complied and will comply as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the 1939 Act and
the rules and regulations of the Commission under the Trust Indenture Act of
1939, as amended (the "1939 Act") (the "1939 Act Regulations"), and did not and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading. At the date of the Prospectus, at the Representation
Date and at the Closing Time and each Date of Delivery, the Prospectus and any
amendments or supplements thereto did not and will not include an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that the representations and
warranties in this subsection shall not apply to statements in or omissions from
(A) that part of the Registration Statement which constitutes the Statements of
Eligibility and Qualification (Forms T-1) under the 1939 Act of the Delaware
Trustee, the Institutional Trustee, the Debt Trustee or the Guarantee Trustee or
(B) the information contained in the Registration Statement or the Prospectus in
reliance upon and in conformity with information furnished in writing to the
Offerors by any Underwriter through Xxxxxxx Xxxxx specifically for inclusion in
the Registration Statement or the Prospectus and actually included therein.
(iii) Each preliminary prospectus and prospectus filed as
part of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 of the 1933 Act Regulations,
complied as to form when so filed in all material respects with the 1933 Act
Regulations and, if applicable, each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with the offering of the
Securities will, at the time of such delivery, be identical in all material
respects to the electronically tran-SM-itted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(iv) The documents incorporated by reference in the
Registration Statement or Prospectus, at the time they were or hereafter are
filed with the Commission, complied and will comply in all material respects
with the requirements of the 1934 Act and the rules and regulations of the
Commission under the 1934 Act (the "1934 Act Regulations"), and, when read
together with the other information in the Prospectus, at the time the
Registration Statement became effective, at the time the Prospectus was issued,
at the Representation Date and at the Closing Time and each Date of Delivery,
did
not and will not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading.
(v) PriceWaterhouseCoopers LLP, the accountants who certified
the financial statements and supporting schedules included in or incorporated by
reference into the Registration Statement, are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations. The financial statements
included or incorporated by reference in the Registration Statement and the
Prospectus, together with the related schedules and notes, present fairly the
financial position of the Company and its consolidated subsidiaries at the dates
indicated and the statements of income, stockholders' equity and cash flows of
the Company and its consolidated subsidiaries for the periods specified; said
financial statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout the
periods involved. The supporting schedules, if any, included or incorporated by
reference in the Registration Statement present fairly in accordance with GAAP
the information required to be stated therein. The selected financial
information and the summary financial information included in the Prospectus
present fairly the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included or
incorporated by reference in the Registration Statement and the Prospectus.
(vi) The Trust has been duly created and is validly existing
and in good standing as a statutory trust under the Delaware Act with the power
and authority to own property and to conduct its business as described in the
Registration Statement and Prospectus and to enter into and perform its
obligations under this Agreement, the Pricing Agreement, the Preferred
Securities, the Common Securities and the Declaration; the Trust is duly
qualified to transact business as a foreign entity and is in good standing in
each jurisdiction in which such qualification is necessary, except where the
failure to so qualify or be in good standing would not have a material adverse
effect on the Trust; the Trust is not a party to or otherwise bound by any
material agreement other than those described in the Prospectus; the Trust is
and will (under current law) be classified for United States federal income tax
purposes as a grantor trust and not as an association taxable as a corporation;
and the Trust is and will be treated as a consolidated subsidiary of the Company
pursuant to GAAP.
(vii) The Common Securities have been duly authorized by the
Trust pursuant to the Declaration and, when issued and delivered by the Trust to
the Company against payment therefore as described in the Registration Statement
and the Prospectus, will be validly issued and, subject to the terms of the
Declaration, fully paid and non-assessable undivided beneficial interests in the
assets of the Trust and will conform in all material respects to the description
thereof contained in the Prospectus; the issuance of the Common Securities is
not subject to preemptive or other similar rights; and at the Closing Time and
each Date of Delivery all of the issued and outstanding Common Securities of the
Trust will be directly owned by the Company free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equitable right.
(viii) This Agreement has been, and as of the Representation
Date the Pricing Agreement will have been, duly authorized, executed and
delivered by each of the Offerors.
(ix) The Declaration has been duly authorized by the Company
and, at the Closing Time, will have been duly executed and delivered by the
Company and the Trustees, and assuming due authorization, execution and delivery
of the Declaration by the Institutional Trustee and the Delaware Trustee, the
Declaration will, at the Closing Time and any Date of Delivery, be a valid and
binding obligation of the Company, the Trust and the Regular Trustees,
enforceable against the Company and the Regular Trustees in accordance with its
terms, except to the extent that enforcement thereof may be limited by
bankruptcy, reorganization, insolvency, moratorium or other similar laws
affecting the rights of creditors generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding at law or in
equity) (collectively, the "Bankruptcy Exceptions") and will conform in all
material respects to the description thereof contained in the Prospectus; and
the Declaration has been duly qualified under the 0000 Xxx.
(x) Each of the Guarantees and the Guarantee Agreements has
been duly authorized by the Company and, when validly executed and delivered by
the Company, and, in the case of the Preferred Securities Guarantee and the
Preferred Securities Guarantee Agreement, assuming due authorization, execution
and delivery of the Preferred Securities Guarantee Agreement by the Guarantee
Trustee, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms except to the
extent that enforcement thereof may be limited by the Bankruptcy Exceptions, and
each of the Guarantees and the Guarantee Agreements will conform in all material
respects to the description thereof contained in the Prospectus; and the
Preferred Securities Guarantee Agreement has been duly qualified under the 1939
Act.
(xi) The Preferred Securities have been duly authorized by
the Trust pursuant to the Declaration and, when issued and delivered pursuant to
this Agreement against payment of the consideration therefore as provided
herein, will be validly issued and fully paid and non-assessable undivided
beneficial interests in the assets of the Trust (provided that the holders of
the Preferred Securities may be obligated to make certain payments as set forth
in the Declaration) and will conform in all material respects to the description
thereof contained in the Prospectus; the issuance of the Preferred Securities is
not subject to preemptive or other similar rights; and holders of Preferred
Securities will be entitled to the same limitation of personal liability under
Delaware law as extended to stockholders of private corporations for profit.
(xii) Each of the Regular Trustees is an employee of the
Company and has been authorized by the Company to execute and deliver the
Declaration; the Declaration has been duly executed and delivered by the Regular
Trustees and is a valid and binding obligation of each Regular Trustee,
enforceable against such Regular Trustee in accordance with its terms except to
the extent that enforcement thereof may be limited by the Bankruptcy Exceptions.
(xiii) The Indenture has been duly authorized by the Company;
each of the Base Indenture, Supplemental Indenture No. 1, Supplemental Indenture
No. 2, Supplemental Indenture No. 3, Supplemental Indenture No. 4 and
Supplemental Indenture No. 5 does constitute, and Supplemental Indenture No. 6,
when validly executed and delivered by the Debt Trustee, will constitute a valid
and binding agreement of the Company, enforceable against the Company in
accordance with its terms except to the extent the enforcement thereof may be
limited by the Bankruptcy Exceptions; the Indenture will conform in all material
respects to the description thereof contained in the Prospectus; and the
Indenture has been duly qualified under the 1939 Act.
(xiv) The Subordinated Debt Securities have been duly
authorized by the Company and, when validly executed by the Debt Trustee,
authenticated in the manner provided for in the Indenture and delivered against
payment therefore as described in the Prospectus, will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms except to the extent that enforcement thereof may be
limited by the Bankruptcy Exceptions, and will be in the form contemplated by,
and entitled to the benefits of, the Indenture and will conform in all material
respects to the description thereof contained in the Prospectus.
(xv) None of the Offerors is, and after giving effect to the
offering and sale of the Preferred Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus, none
of the Offerors will be, an "investment company" or an entity "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended (the "1940 Act").
(xvi) No authorization, approval, consent or order of any
court or insurance regulatory authority or other governmental authority or
agency is necessary in connection with the issuance and sale of the Common
Securities or the Common Securities Guarantee or the offering, issuance or sale
of the Securities as contemplated hereby, except such as may be required under
the 1933 Act or the 1933 Act Regulations or state securities laws and the
qualification of the Declaration, the Preferred Securities Guarantee Agreement
and the Indenture under the 1939 Act.
(xvii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not been (i)
(x) any material change in the capital stock or (y) any increase in the
long-term debt of the Company or any of its subsidiaries in excess of $10
million, (ii) any material adverse change or any development involving a
prospective material adverse change in or affecting the general affairs,
management, financial position, stockholders' equity or results of operations of
the Company and its subsidiaries taken as a whole or (iii) any reduction in the
statutory capital or surplus of the Company's subsidiaries engaged in the
business of insurance (each an "Insurance Subsidiary," and collectively, the
"Insurance Subsidiaries"), taken as a whole, in excess of $15 million, in each
case otherwise than as set forth or contemplated in the Prospectus.
(xviii) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, with power and
authority (corporate and other) to own its properties and conduct its business
as described in the Prospectus and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so qualified in
any such jurisdiction.
(xix) Each of Protective Life Insurance Company ("Protective
Life") and West Coast Life Insurance Company ("West Coast"), (each a "Material
Subsidiary" and, collectively, the "Material Subsidiaries") has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described in the
Prospectus, and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any business, so
as to require such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such jurisdiction.
(xx) Each of the Material Subsidiaries is duly organized and
licensed as an insurance company in its state of incorporation and is duly
licensed or authorized as an insurer in each other jurisdiction where it is
required to be so licensed or authorized, with corporate power to conduct its
business as described in the Prospectus (except for any such jurisdiction in
which the failure to be so licensed or authorized would not reasonably be
expected to have a material adverse effect on the business, financial condition
or results of operations of the Company and its subsidiaries, considered as a
whole); and except as otherwise specifically described in the Prospectus,
neither the Company nor such Material Subsidiary has received any notification
from any insurance regulatory authority to the effect that any additional
authorization, approval, order, consent, license, certificate, permit,
registration or qualification from such insurance regulatory authority is needed
to be obtained by either of the Company or Protective Life Insurance in any case
where it would be reasonably expected that the failure to obtain any such
additional authorization, approval, order, consent, license, certificate,
permit, registration or qualification would have a material adverse effect on
the business, financial position or results of operations of the Company and its
subsidiaries, considered as a whole.
(xxi) Except as disclosed in the Prospectus, there are no
actions, suits or proceedings before or by any government, governmental
instrumentality or court, domestic or foreign, now pending to which the Company
or any of its subsidiaries is a party or of which any property or assets of the
Company or any of its subsidiaries is the subject which, if determined adversely
to the Company or any of its subsidiaries, would reasonably be expected to,
individually or in the aggregate, have a material adverse effect on the
consolidated financial position, stockholders' equity (if applicable) or results
of operations of the Company and its subsidiaries, or materially adversely
affect the ability of the Company to perform its obligations hereunder or under
the Pricing Agreement or the consummation of the transactions contemplated by
this Agreement or the Pricing Agreement; and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(xxii) The Trust is not in violation of the Declaration or
its certificate of trust filed with the State of Delaware on July 1, 1997 (the
"Certificate of Trust"), and neither the Company nor any Material Subsidiary is
in violation of its charter or by-laws. None of the Company, any Material
Subsidiary or the Trust is in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease or
other agreement or instrument to which it is a party or by which it may be
bound, or to which any of its property or assets may be subject, except for such
defaults that would not be reasonably expected to result in any material adverse
effect on the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and the Material Subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business. None
of the execution, delivery and performance of this Agreement, the Pricing
Agreement, the Declaration, the Preferred Securities, the Common Securities, the
Indenture, the Subordinated Debt Securities, the Guarantee Agreements and the
Guarantees and the consummation of the transactions contemplated hereby and
thereby and compliance by the Offerors with their respective obligations
hereunder and thereunder did or will result in a breach of any of the terms or
provisions of, or constitute a default or require the consent of any party
under, (A) the Certificate of Trust of the Trust or the charter or by-laws of
the Company or any Material Subsidiary, (B) any contract, indenture, mortgage,
note, lease, agreement or other instrument to which any of the Trust, the
Company and the Material Subsidiaries is a party or by which any of them may be
bound, or any applicable law, rule or regulation or any judgment, order or
decree of any government, governmental instrumentality, insurance regulatory
authority or court, domestic or foreign, having jurisdiction over the Trust, the
Company or any Material Subsidiary or any of their respective property or
assets, or did or will result in the creation or imposition of any lien on the
property or assets of the Trust, the Company or any Material Subsidiary, except,
in the case of the foregoing clause (B), for such defaults, consents or liens
which would not reasonably be expected to result in a material adverse effect on
the condition (financial or otherwise), earnings, business affairs or business
prospects of the Company and the Material Subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business.
(b) Each certificate signed by any officer of the Company or
a Regular Trustee and delivered to the Representatives or to counsel for the
Underwriters shall be deemed to be a representation and warranty by the Company
or the Trust, as the case may be, to each Underwriter as to the matters covered
thereby.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) The terms and rights of the Preferred Securities shall be
as specified in the Pricing Agreement.
(b) In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Offerors hereby grant an option to the Underwriters, severally and
not jointly, to purchase up to an additional 600,00 Pre-
ferred Securities at the price per Preferred Security set forth in the Pricing
Agreement. The option hereby granted will expire at the close of business on the
30th calendar day after the date hereof and may be exercised in whole or in part
from time to time only for the purpose of covering overallotments which may be
made in connection with the offering and distribution of the Initial Securities
upon notice by the Representatives to the Offerors setting forth the number of
Option Securities as to which the several Underwriters are then exercising the
option and the time and date of payment and delivery for such Option Securities.
Any such time and date of delivery (a "Date of Delivery") shall be determined by
Xxxxxxx Xxxxx, but shall not be later than seven full business days after the
exercise of said option, nor in any event prior to the Closing Time, as
hereinafter defined. If the option is exercised as to all or any portion of the
Option Securities, each of the Underwriters, acting severally and not jointly,
will purchase the same percentage of the total number of Option Securities then
being purchased as such Underwriter is purchasing of the Initial Securities as
set forth in Schedule I to the Pricing Agreement opposite the name of such
Underwriter bears to the total number of Initial Securities, subject in each
case to such adjustments as Xxxxxxx Xxxxx in its discretion shall make to
eliminate any sales or purchases of fractional shares.
(c) Payment of the purchase price for, and delivery of
certificates for, the Initial Securities and the Option Securities (if the
option provided for in Section 2(b) hereof shall have been exercised on or
before the first business day prior to Closing Time) shall be made at the office
of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, Xxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, or at such other place as shall be agreed upon by the
Representatives and the Offerors, at 10:00 A.M. New York time on the third
business day (unless postponed in accordance with the provisions of Section 10)
after execution of the Pricing Agreement, or such other time not later than two
business days after such date as shall be agreed upon by the Representatives,
the Trust and the Company (such time and date of payment and delivery being
herein called "Closing Time"). Payment for the Preferred Securities purchased by
the Underwriters shall be made to the Trust by wire transfer of immediately
available funds to a bank account designated by the Trust, against delivery to
the Representatives for the respective accounts of the Underwriters of
certificates for the Preferred Securities to be purchased by them.
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, the closing with respect to such Option
Securities shall be made at the above-mentioned offices, or at such other place
as shall be agreed upon by Xxxxxxx Xxxxx and the Offerors, on each Date of
Delivery as specified in the notice from Xxxxxxx Xxxxx to the Company.
(d) Subject to the terms and provisions of the Declaration,
certificates for the Preferred Securities to be purchased by the Underwriters
shall be in such denominations and registered in such names as the Underwriters
may request in writing at least two business days before the Closing Time or any
Date of Delivery, as the case may be.
(e) It is understood that each Underwriter has authorized
Xxxxxxx Xxxxx, for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Preferred Securities that it has agreed
to purchase. Xxxxxxx Xxxxx, individually and not as Representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Preferred Securities, if any, to be purchased by any Underwriter
whose funds have
not been received by the Closing Time or any Date of Delivery, as the case may
be, but such payment shall not relieve such Underwriter from its obligations
hereunder.
At the Closing Time, or any Date of Delivery, as the case may
be, the Company will pay, or cause to be paid, the commission payable at such
time to the Underwriters under this Section 2 to Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated by wire transfer of immediately available funds to a bank
account designated by Xxxxxxx Xxxxx.
SECTION 3. COVENANTS OF THE OFFERORS. The Offerors agree with each
Underwriter as follows:
(a) Promptly following the execution of this Agreement, the
Offerors will cause the Prospectus to be filed with the Commission pursuant to
Rule 424 of the 1933 Act Regulations and the Offerors will promptly advise the
Underwriters when such filing has been made. The Offerors will comply with the
requirements of Rule 430A and will notify the Representatives immediately, and
confirm the notice in writing, of (i) the effectiveness of the Registration
Statement and any amendment thereto (including any post-effective amendment),
(ii) the receipt of any comments from the Commission, (iii) any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, (iv) the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that purpose and
(v) the issuance by any state securities commission or other regulatory
authority of any order suspending the qualification or the exemption from
qualification of the Securities under state securities or blue sky laws or the
initiation or threatening of any proceeding for such purpose. The Offerors will
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is, issued, to obtain the lifting thereof at the earliest
possible moment.
(b) The Offerors will give the Representatives notice of
their intention to file or prepare (i) any amendment to the Registration
Statement (including any post-effective amendment), (ii) any amendment or
supplement to either the prospectus included in the Registration Statement at
the time it became effective or to the Prospectus, or (iii) any document that
would as a result thereof be incorporated by reference in the Prospectus,
whether pursuant to the 1933 Act, the 1934 Act or otherwise, and will furnish
the Underwriters with copies of any such amendment, supplement or other document
within a reasonable amount of time prior to such proposed filing or use, as the
case may be, and will not file any such amendment, supplement or other document
or use any such prospectus to which counsel for the Underwriters shall
reasonably object. Subject to the foregoing, following the execution and
delivery of the Pricing Agreement, the Offerors will promptly prepare a
supplement to the Prospectus to reflect the terms of the Preferred Securities
and the terms of the offering contemplated by this Agreement and the Pricing
Agreement. The Offerors will file such Prospectus as so supplemented pursuant to
Rule 424(b) under the Act within the time periods provided by such Rule and Rule
430A(a)(3) under the Act.
(c) The Offerors will deliver to the Representatives and
counsel for the Underwriters, without charge, as many conformed copies of the
Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference therein), executed signature pages thereof
and signed copies of all consents and certificates of experts as the
Representatives may reasonably request. If applicable, the copies of the
Registration Statement and each amendment thereto furnished to the Underwriters
will be identical in all material respects to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(d) The Offerors will deliver to each Underwriter, without
charge, as many copies of each preliminary prospectus as such Underwriter may
reasonably request, and the Offerors hereby consent to the use of such copies
for purposes permitted by the 1933 Act. The Offerors will furnish to each
Underwriter, without charge, during the period when the Prospectus is required
to be delivered under the 1933 Act, such number of copies of the Prospectus (as
amended or supplemented) as such Underwriter may reasonably request. If
applicable, the Prospectus and any amendments or supplements thereto furnished
to the Underwriters will be identical in all material respects to the
electronically transmitted copies thereof filed with the Commission pursuant
to XXXXX, except to the extent permitted by Regulation S-T.
(e) The Offerors will comply with the 1933 Act and the 1933
Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit
the completion of the distribution of the Securities as contemplated in this
Agreement and in the Registration Statement and the Prospectus. If, at any time
when the Prospectus is required by the 1933 Act to be delivered in connection
with offers or sales of the Securities, any event shall occur or condition shall
exist as a result of which it is necessary, in the opinion of counsel for the
Underwriters or for the Offerors, to amend the Registration Statement in order
that the Registration Statement will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or to amend or
supplement the Prospectus in order that the Prospectus will not include any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein in light of the circumstances under which they
were made not misleading or if it shall be necessary, in the opinion of either
such counsel, to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, the Offerors will, subject to paragraph (b) above, promptly
prepare and file with the Commission such amendment or supplement which will
correct such untrue statement or omission or effect such compliance and the
Offerors will furnish to the Underwriters, without charge, such number of copies
of such amendment or supplement as the Underwriters may reasonably request.
(f) The Company will, on behalf of the Trust, timely file
such reports pursuant to the 1934 Act as are necessary in order to make
generally available to its securityholders as soon as practicable an earnings
statement covering a twelve-month period beginning after the "effective date"
(as defined in Rule 158 of the 1933 Act Regulations) of the Registration
Statement and ending not later than 15 months thereafter, that shall satisfy the
provisions of Section 11(a) of the 1933 Act and said Rule 158.
(g) The Offerors will use their best efforts to effect the
listing of the Preferred Securities (including the Preferred Securities
Guarantee) on the New York Stock Exchange and to cause the Securities to be
registered under the 1934 Act. If the Preferred Securities are exchanged for
Subordinated Debt Securities, the Company will use its best efforts to effect
the listing of the Subordinated Debt Securities on the exchange on which the
Preferred Securities
were then listed and to cause the Subordinated Debt Securities to be registered
under the 1934 Act.
(h) During a period of 90 days from the date of the Pricing
Agreement, neither the Trust nor the Company will, without the prior written
consent of Xxxxxxx Xxxxx, directly or indirectly, sell, offer to sell, grant any
option for the sale of, or otherwise dispose of, or enter into any agreement to
sell, any Preferred Securities, any security convertible into or exchangeable
into or exercisable for Preferred Securities or the Subordinated Debt Securities
or any subordinated debt securities substantially similar to the Subordinated
Debt Securities or equity securities substantially similar to the Preferred
Securities.
(i) The Offerors will use the net proceeds received by them
from the sale of the Securities in the manner specified in the Prospectus under
"Use of Proceeds."
(j) The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act, will file all documents required to
be filed with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act
within the time periods required by the 1934 Act and the 1934 Act Regulations.
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all expenses
incident to the performance of each Offeror's obligations under this Agreement,
including, without limitation, expenses related to the following, if incurred:
(i) the preparation, delivery, printing and filing of the Registration Statement
and Prospectus as originally filed (including exhibits) and of each amendment
thereto, (ii) the preparation, issuance and delivery of the certificates for the
Preferred Securities, (iii) the fees and disbursements of the Company's and the
Trust's counsel and accountants, (iv) the qualification, as applicable, of the
Securities under state securities laws, including filing fees and the reasonable
fees and disbursements of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for
the Underwriters, in connection therewith and in connection with the preparation
of any blue sky survey and any legal investment survey, (v) the printing and
delivery to the Underwriters of copies of the Registration Statement as
originally filed and of each amendment thereto, of each preliminary prospectus
and of the Prospectus and any amendments or supplements thereto, (vi) the
preparation and delivery to the Underwriters of copies of any blue sky survey
and any legal investment survey, (vii) the filing fees incident to, and the fees
and disbursements of counsel to the Underwriters in connection with, the review,
if any, by the National Association of Securities Dealers, Inc. (the "NASD") of
the terms of the sale of the Preferred Securities, (viii) the fees and expenses
of the Trustees and the Debt Trustee, including the fees and disbursements of
counsel for the Trustees and the Debt Trustee, (ix) any fees payable in
connection with the rating of the Preferred Securities by nationally recognized
statistical rating organizations, (x) the fees and expenses incurred in
connection with the listing of the Preferred Securities and, if applicable, the
Subordinated Debt Securities on the New York Stock Exchange, (xi) the cost and
charges of the Company's counsel, accountants and other advisors or agents
(including the transfer agents and registrars), (xii) the cost of qualifying the
Preferred Securities with the Depository Trust Company, (xiii) any fees payable
to the Commission, and (xiv) all other costs and expenses incident to the
performance of the Offerors' obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that
except as provided in this Section 4, the Underwriters will pay all of their own
costs and ex-
penses, including the fees of their counsel, transfer taxes on resale of any of
the securities by them, and any advertising or marketing expenses in connection
with any offers they may make.
If this Agreement is terminated by the Representatives in
accordance with the provisions of Section 5 (other than Section 5(h)) or Section
9(a) (i) or the first clause of Section 9(a) (iii) hereof, the Company shall
reimburse the Underwriters for all of their out-of-pocket expenses, including
the reasonable fees and disbursements of Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP, counsel for the Underwriters.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations
of the Underwriters to purchase and pay for the Preferred Securities at the
Closing Time or any Date of Delivery pursuant to this Agreement and the Pricing
Agreement are subject to the accuracy of the representations and warranties of
the Offerors contained herein or in certificates of any officer of the Company
or any subsidiary of the Company or any Trustee delivered pursuant to the
provisions hereof, to the performance by the Offerors of their obligations
hereunder, and to the following further conditions:
(a) At the time of execution and delivery of the Pricing
Agreement and at Closing Time or any Date of Delivery, as the case may be, no
stop order suspending the effectiveness of the Registration Statement or any
part hereof shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters. A Prospectus containing
information relating to the description of the Securities, the specific method
of distribution and similar matters shall have been filed with the Commission in
accordance with Rule 424(b) (1), (2), (3), (4) or (5) as applicable.
(b) At Closing Time and on each Date of Delivery the
Representatives shall have received:
(1) The signed opinion, dated as of the Closing Time, or the Date of
Delivery, as the case may be, of Xxxxxxx X. Xxxx, Esq., Senior Vice President,
Secretary and General Counsel of the Company, or any successor having
substantially equivalent responsibilities with the Company, together with
signed, or reproduced copies of such opinion for each of the other Underwriters,
in form and in substance reasonably satisfactory to counsel for the
Underwriters, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Delaware, with power and authority (corporate and other)
to own its properties and conduct its business as described in the
Prospectus as amended or supplemented, and has been duly qualified as
a foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction.
(ii) The Company has an authorized capitalization as set
forth in the Prospectus as amended or supplemented, and all of the
issued shares of capital stock of
the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and conform in all material respects to
the description thereof in the Prospectus as amended or supplemented;
and all of the issued shares of capital stock of each of the Material
Subsidiaries have been duly and validly authorized and issued, are
fully paid and non-assessable and (except for directors' qualifying
shares) are owned directly or indirectly by the Company, free and
clear of any perfected security interests and, to such counsel's best
knowledge, any other security interests, claims, liens or
encumbrances.
(iii) Each of the documents incorporated by reference in
the Registration Statement or the Prospectus at the time they were
filed or became effective (other than the financial statements and the
notes thereto, the financial statement schedules, and any other
financial or statistical data included or incorporated by reference
therein, as to which such counsel need express no opinion) complied as
to form in all material respects with the requirements of the 1934 Act
and the 1934 Act Regulations, as applicable; and such counsel has no
reason to believe that any of such documents, when such documents
became effective or were so filed, as the case may be, 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.
(iv) All of the issued and outstanding Common Securities
are directly owned by the Company free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equitable
right.
(v) The execution, delivery and performance of this
Agreement, the Pricing Agreement, the Declaration, the Preferred
Securities, the Common Securities, the Indenture, the Subordinated
Debt Securities, the Guarantee Agreements, and the Guarantees and the
consummation of the transactions contemplated hereby and thereby, and
the compliance by each of the Offerors with their respective
obligations hereunder and thereunder do not and will not (a) conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any contract, indenture,
mortgage, agreement, note, lease or other agreement or instrument
known to such counsel to which any of the Trust, the Company or any
Material Subsidiary is a party or by which any of them may be bound or
to which any of their property or assets is subject, except, in all
such cases, for such conflicts, breaches, violations or defaults as
would not reasonably be expected to have a material adverse effect on
the financial condition of the Trust, the Company and the Material
Subsidiaries taken as a whole or would not reasonably be expected to
have a material adverse effect on the issuance or sale of the
Securities, or (b) result in any violation of the provisions of (x)
the charter or by-laws of the Company or either of the Material
Subsidiaries or the Certificate of Trust of the Trust or (y) any
statute, rule or regulation known to such counsel of any court or
insurance regulatory authority or other governmental agency or body
having jurisdiction over the Trust, the Company or any of the Material
Subsidiaries or any of their respective properties or assets, except,
with respect to clause (y) above, such violations as would not
reasonably be expected to have a material adverse effect on the
financial condition or results of operations of the Company and the
Material Subsidiaries taken as a whole or the Trust or would not
affect the validity of or otherwise have a material adverse effect on
the issuance or sale of the Securities; and except that for purposes
of this paragraph (v) such
counsel need not express any opinion as to any violation of any
federal or state securities laws or blue sky or insurance securities
laws; provided further that insofar as performance by the Offerors of
their obligations hereunder is concerned, such counsel need not
express any opinion as to the Bankruptcy Exceptions.
(vi) To the best of such counsel's knowledge, no consent,
approval, authorization, order, registration or qualification of or
with any court or insurance regulatory authority or other governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries or the Trust is required for the issue or sale of the
Common Securities or the Common Securities Guarantee or the offering,
issuance or sale of the Securities or the consummation by the Company
or the Trust of the transactions contemplated hereby, except such as
have been, or will have been prior to Closing Time, obtained under the
1933 Act and the 1939 Act and such consents, approvals, Orders,
authorizations, registrations or qualifications as may be required
under state securities laws or blue sky laws or insurance securities
laws in connection with the purchase and distribution of the
Securities by the Underwriters, and except those which, if not
obtained, would not reasonably be expected to have a material adverse
effect on the financial condition or results of operation of the
Company and its subsidiaries taken as a whole or the Trust.
(vii) There are no legal or governmental proceedings
pending or, to the best of such counsel's knowledge, threatened, to
which the Company or any of its subsidiaries is a party or of which
any property of the Company or any of its subsidiaries is the subject
of a character required under the Federal securities laws to be
disclosed in the Registration Statement or Prospectus which are not
adequately disclosed in the Registration Statement or Prospectus.
Such counsel shall also have stated that, while she has not herself
checked the accuracy or completeness of or otherwise verified, and is not
passing upon and assumes no responsibility for the accuracy or completeness of,
the statements contained in the Registration Statement or the Prospectus, in the
course of her review and discussion of the contents of the Registration
Statement and Prospectus and any amendment or supplement thereto with certain
officers and employees of the Company and its independent accountants, but
without independent check or verification, no facts have come to her attention
that would cause her to believe that the Registration Statement or the
Prospectus, as amended or supplemented, as of the Representation Date and the
Closing Time or any Date of Delivery (other than the financial statements and
related notes, the financial statement schedules and other financial and
statistical data included therein and the statements of eligibility of the
respective Trustees on Form T-1 under the 1939 Act, as to which she need express
no belief) contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
In rendering the foregoing opinions, (i) such counsel may state that
she is admitted to the Bar of the State of Alabama only, and (ii) such counsel
may rely (A) as to any matter of Delaware or Federal Law, upon the opinion of
Xxxxx Xxxx, Esq., Senior Associate Counsel of the Company delivered in
accordance with Section 5(b)(2) and the opinion of Xxxxxxxx, Xxxxxx &
Finger, P.A. delivered in accordance with Section 5(b)(3), (B) as to any matter
to which you consent (which consent shall not be unreasonably withheld), to the
extent specified in such opinion, upon the opinions (copies of which shall have
been provided to the Representatives) of other counsel in good standing whom
such counsel believes to be reliable, provided that such counsel shall state
that she believes that both she and the Representatives are justified in relying
on such opinions and (C) as to matters of fact, upon certificates of officers
and representatives of the Company and of public officials (copies of which
shall have been provided to the Representatives), provided that such counsel
shall state that she believes that both she and the Representatives are
justified in relying upon such certificates.
(2) The signed opinion, dated as of the Closing Time, or the Date of
Delivery, as the case may be, of Xxxxx Xxxx, Esq., Senior Associate Counsel of
the Company, together with signed, or reproduced, copies of such opinion for
each of the other Underwriters, in form and in substance reasonably satisfactory
to counsel for the Underwriters, to the effect that:
(i) The Registration Statement and the Prospectus as
amended or supplemented (other than the financial statements and
related notes, the financial statement schedules and other financial
and statistical data included or incorporated by reference therein, as
to which no opinion is being expressed) comply as to form in all
material respects with the requirements of the 1933 Act, the 1933 Act
Regulations, the 1939 Act and the 1939 Act Regulations; and the
Declaration, the Indenture, the Guarantee Agreements and the
Statements of Eligibility on Forms T-1 with respect to each of the
Institutional Trustee, the Debt Trustee and the Guarantee Trustee
filed with the Commission as part of the Registration Statement comply
as to form in all material respects with the requirements of the 1939
Act and the 1939 Act Regulations.
(ii) The Registration Statement has become effective under
the 1933 Act; the Prospectus has been filed pursuant to Rule 424 of
the 1933 Act Regulations, and no proceedings for a stop order have
been instituted or are pending or, to the knowledge of such counsel,
threatened under Section 8(d) of the 1933 Act; and no further approval
of, authorization, consent, certificate or order of any governmental
body, federal, state or other, is required in connection with the
issuance and sale of the Securities to the Underwriters as provided in
the Agreement and the Pricing Agreement, except as may be required by
state securities laws.
(iii) The Declaration has been duly authorized, executed
and delivered by the Company and the Trustees and, assuming due
authorization, execution and delivery by the Institutional Trustee and
the Delaware Trustee, is a valid and binding obligation of the
Company, enforceable against the Company and each of the Regular
Trustees in accordance with its terms, except to the extent that
enforcement thereof may be limited by the Bankruptcy Exceptions; and
the Declaration has been duly qualified under the 1939 Act.
(iv) Each of the Offerors meets the requirements for use of
Form S-3 under the 1933 Act Regulations.
(v) The Common Securities, the Preferred Securities, the
Subordinated Debt Securities, the Declaration, the Indenture and each
of the Guarantee Agreements conform in all material respects to the
descriptions thereof contained in the Prospectus.
(vi) The statements in the Prospectus under the captions
"Description of Securities," "Description of the Preferred Securities
Guarantee," "Description of Debt Securities of Protective" and "Effect
of Obligations under the Subordinated Debt Securities and the
Preferred Securities Guarantees," insofar as such statements
constitute summaries of certain provisions of the documents and laws
referred to therein, have been reviewed by such counsel and fairly
summarize the material provisions of such documents and laws.
(vii) Each of this Agreement and the Pricing Agreement has
been duly authorized, executed and delivered by each of the Trust and
the Company.
(viii) Each of the Guarantee Agreements has been duly
authorized, executed and delivered by the Company; the Preferred
Securities Guarantee and the Preferred Securities Guarantee Agreement,
assuming they are duly authorized, executed and delivered by the
Guarantee Trustee, constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their
terms, except to the extent that enforcement thereof may be limited by
the Bankruptcy Exceptions; and the Preferred Securities Guarantee
Agreement has been duly qualified under the 1939 Act.
(ix) The Indenture has been duly executed and delivered by
the Company and, assuming due authorization, execution, and delivery
thereof by the Debt Trustee, is a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms,
except to the extent' that enforcement thereof may be limited by the
Bankruptcy Exceptions; and the Indenture has been duly qualified under
the 0000 Xxx.
(x) The Subordinated Debt Securities are in the form
contemplated by the Indenture, have been duly authorized, executed and
delivered by the Company and, when authenticated by the Debt Trustee
in the manner provided for in the Indenture and delivered against
payment therefor as provided in this Agreement and the Pricing
Agreement, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their
terms, except to the extent that enforcement thereof may be limited by
the Bankruptcy Exceptions.
(xi) None of the Offerors is, and following consummation of
the transactions contemplated hereby and the application of the
proceeds therefrom in the manner set forth in the Prospectus will be,
an "investment company" or under the "control" of an "investment
company" as such terms are defined in the 1940 Act.
Such counsel shall also have stated that, while she has not herself
checked the accuracy or completeness of or otherwise verified, and is not
passing upon and assumes no responsibility for the accuracy or completeness of,
the statements contained in the Registration Statement or the Prospectus, except
to the limited extent stated in paragraph (vi) above, in the course of her
review and discussion of the contents of the Registration Statement and the
Prospectus with cer-
tain officers and employees of the Company and its independent accountants, but
without independent check or verification, no facts have come to her attention
that would cause her to believe that the Registration Statement or the
Prospectus, as amended or supplemented, as of the Representation Date and the
Closing Time or the Date of Delivery, as the case may be (other than the
financial statements and related notes, the financial statement schedules, and
other financial and statistical data included or incorporated by reference
therein as to which she need express no belief) contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
In rendering the foregoing opinion, such counsel may state that she is
admitted to the Bar of the State of New York and that she expresses no opinion
as to the laws of any jurisdiction other than the Federal laws of the United
States and the laws of the States of New York. In giving such opinion, such
counsel may rely, as to matters of Delaware law, upon the opinion of Xxxxxxxx,
Xxxxxx & Finger, P.A., special Delaware counsel to the Offerors, in which case
the opinion shall state that she believes that you and she are entitled to so
rely.
(3) The signed opinion, dated as of the Closing Time, or the Date of
Delivery, as the case may be, of Xxxxxxxx, Xxxxxx & Finger, P.A., special
Delaware counsel to the Offerors, together with signed or reproduced copies of
such opinion for each of the other Underwriters, in form and substance
reasonably satisfactory to counsel for the Underwriters, to the effect that:
(i) The Trust has been duly created and is validly
existing in good standing as a statutory trust under the Delaware Act
and has the statutory trust power and authority to conduct its
business as described in the Registration Statement and the
Prospectus.
(ii) Assuming that the Declaration has been duly
authorized, executed and delivered by the Company and the Trustees,
the Declaration constitutes a valid and binding obligation of the
Trustees and the Company and is enforceable against the Trustees and
the Company in accordance with its terms, except that to the extent
that enforceability thereof may be limited by the Bankruptcy
Exceptions.
(iii) Under the Delaware Act and the Declaration, the Trust
has the power to (i) execute and deliver, and to perform its
obligations under, this Agreement and the Pricing Agreement and (ii)
issue, and perform its obligations under, the Common Securities and
the Preferred Securities.
(iv) The execution and delivery by the Trust of this
Agreement and the Pricing Agreement, and the performance by the Trust
of its obligations hereunder, have been duly authorized by all
necessary action on the part of the Trust.
(v) The Preferred Securities have been duly authorized by
the Declaration and, when executed by the Trust and the Institutional
Trustee in accordance with the Declaration and delivered against
payment therefor in accordance with the terms of this Agreement and
the Pricing Agreement, will be validly issued and, subject to the
qualifications hereinafter expressed in this paragraph (v), fully paid
and nonassessable undivided beneficial interests in the assets of the
Trust; the holders of the Preferred Securities, as beneficial owners
of the Trust, will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit
organized under the
General Corporation Law of the State of Delaware; said counsel may
note that the holders of the Preferred Securities may be obligated to
make payments as set forth in the Declaration.
(vi) The Common Securities have been duly authorized by the
Declaration and, when issued, executed and authenticated in accordance
with the terms of the Declaration, and delivered and paid for as set
forth in the Registration Statement, will be validly issued, undivided
beneficial interests in the assets of the Trust.
(vii) Under the Delaware Act and the Declaration, the
issuance of neither the Common Securities nor the Preferred Securities
is subject to preemptive or other similar rights.
(viii) The issuance and sale by the Trust of the Preferred
Securities and Common Securities, the execution, delivery and
performance by the Trust of this Agreement and the Pricing Agreement,
the consummation of the transactions contemplated hereby and the
compliance by the Trust with its obligations hereunder will not
violate any of the provisions of the Certificate of Trust or
Declaration or any applicable Delaware law or administrative
regulation.
(ix) None of the execution and delivery by the Trust of, or
the performance by the Trust of its obligations under, this Agreement
and the Pricing Agreement, the issuance and sale of the Preferred
Securities by the Trust in accordance with the terms of this Agreement
and the Pricing Agreement and the consummation of the other
transactions contemplated hereby, will contravene any provisions of
applicable Delaware law or administrative regulations or the
Certificate of Trust or the Declaration.
(4) The signed opinion, dated as of the Closing Time and each Date of
Delivery of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to Wilmington Trust
Company, as Institutional Trustee under the Declaration and Guarantee Trustee
under the Preferred Securities Guarantee Agreements, together with signed or
reproduced copies of such opinion for each of the other Underwriters, in form
and substance reasonably satisfactory to counsel for the Underwriters, to the
effect that:
(i) Wilmington Trust Company is a Delaware banking
corporation with trust powers, duly organized, validly existing and in
good standing under the laws of the State of Delaware with all
necessary power and authority to execute and deliver, and to carry out
and perform its obligations under the terms of the Declaration and the
Preferred Securities Guarantee Agreement.
(ii) The execution, delivery and performance by the
Institutional Trustee of the Declaration and the execution, delivery
and performance by the Guarantee Trustee of the Preferred Securities
Guarantee Agreement have been duly authorized by all necessary
corporate action on the part of the Institutional Trustee and the
Guarantee Trustee, respectively. The Declaration and the Preferred
Securities Guarantee Agreement have been duly executed and delivered
by the Institutional Trustee and the Guarantee Trustee, respectively.
(iii) The execution, delivery and performance of the
Declaration and the Preferred Securities Guarantee Agreement by the
Institutional Trustee and the Guarantee Trustee, respectively, do not
conflict with or constitute a breach of the Articles of Organization
or Bylaws of the Institutional Trustee and the Guarantee 'Trustee,
respectively.
(iv) No consent, approval or authorization of, or
registration with or notice to, any Delaware or federal banking
authority is required for the execution, delivery or performance by
the Institutional Trustee of the Declaration and the Preferred
Securities Guarantee Agreement.
(5) The signed opinion of Debevoise & Xxxxxxxx, special tax counsel to
the Offerors, dated as of the Closing Time and each Date of Delivery, together
with signed or reproduced copies of such opinion for each of the other
Underwriters, generally to the effect that (i) the Trust will be classified as a
grantor trust and not as an association taxable as a corporation for federal
income tax purposes and (ii) the statements set forth in the Prospectus relating
to the issuance of the Preferred Securities under the caption "Federal Income
Tax Consequences," to the extent that such statements relate to matters of law
or legal conclusion, constitute the opinion of Debevoise & Xxxxxxxx, in each
case based upon current law and the assumptions stated or referred to therein.
Such opinion may be conditioned on, among other things, the initial and
continuing accuracy of the facts, financial and other information, covenants and
representations set forth in certificates of officers of the Company and the
Trust and other documents deemed necessary for such opinion.
(6) The signed opinion, dated as of the Closing Time and each Date of
Delivery, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the
Underwriters, together with signed or reproduced copies of such opinion for each
of the other Underwriters, in form and substance reasonably satisfactory to the
Underwriters, with respect to the incorporation and legal existence of the
Company, the Preferred Securities, the Indenture, the Preferred Securities
Guarantee Agreement, this Agreement, the Pricing Agreement, the Registration
Statement, the Prospectus and other related matters as the Representatives may
require. In giving their opinion, Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP may
rely as to certain matters of Delaware law upon the opinion of Xxxxxxxx, Xxxxxx
& Finger, P.A. Delaware counsel for the Offerors, which shall be delivered in
accordance with Section 5(b)(3) hereof.
(c) Between the Representation Date and the Closing Time or
the Date of Delivery, as the case may be, no material adverse change shall have
occurred in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Trust or the Company and its subsidiaries
considered as one enterprise, whether or not in the ordinary course of business.
(d) At the Closing Time and each Date of Delivery, the
Representatives shall have received a certificate of the President or a
Vice-President of the Company and of the Chief Financial Officer or Chief
Accounting Officer of the Company and a certificate of a Regular Trustee of the
Trust, each dated as of the Closing Time or the Date of Delivery, as the case
may be, to the effect that (i) since the Representation Date there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects
of the Trust or the Company and its subsidiaries considered as one enterprise,
whether or not in the ordinary course of business, (ii) the representations and
warranties in Section 1 hereof are true and correct as though expressly made at
and as of the Closing Time or the Date of Delivery, as the case may be, (iii)
each of the Trust and the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to the
Closing Time or the Date of Delivery, as the case may be, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been initiated or, to their knowledge,
threatened by the Commission.
(e) The Representatives shall have received letters from the
Company's independent public accountants (dated the date of the Pricing
Agreement and the Closing Time and each Date of Delivery, respectively) in the
form attached hereto as Exhibit B.
(f) At Closing Time and each Date of Delivery, counsel for
the Underwriters shall have been furnished with such documents, certificates and
opinions as they may reasonably request for the purpose of enabling them to pass
upon the issuance and sale of the Securities as herein contemplated or in order
to evidence the accuracy of any of the representations or warranties or
statements of either of the Offerors, the performance of the covenants of the
Offerors, or the fulfillment of any of the conditions herein contained.
(g) At Closing Time and each Date of Delivery, the Preferred
Securities shall be rated at least "Baa1" by Moody's Investor's Service Inc. and
"BBB+" by Standard & Poor's Ratings Group, a division of XxXxxx-Xxxx, Inc., and
the Trust shall have delivered to the Representatives a letter, dated the
Closing Time or the Date of Delivery, as the case may be, from such nationally
recognized statistical rating agencies, or other evidence satisfactory to the
Representatives, confirming that the Preferred Securities have such ratings; and
since the Representation Date there shall not have occurred any decrease in the
ratings of any securities of the Company or of the Preferred Securities by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the 1933 Act Regulations) and such organization shall not
have publicly announced that it has under surveillance or review its rating of
any of the securities of the Company or of the Preferred Securities.
(h) The NASD shall not have raised any objection with respect
to the fairness and reasonableness of the underwriting terms and arrangements.
If any condition specified in this Section 5 shall not have
been fulfilled when and as required to be fulfilled, this Agreement and the
Pricing Agreement or, in the case of any condition to the purchase of Option
Securities on a Delivery Date which is after the Closing Time, the obligations
of the several Underwriters to purchase the relevant Option Securities, may be
terminated by the Underwriters by notice to the Company, at any time at or prior
to Closing Time or such Date of Delivery, as the case may be, and such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof, and except that Sections 1, 6, 7 and 8 hereof
shall survive any such termination and will remain in full force and effect.
SECTION 6. INDEMNIFICATION.
(a) The Offerors jointly and severally agree to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all losses, claims, expenses,
damages and liabilities whatsoever, as incurred, arising out of any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto),
including the information included in the Prospectus that was omitted
from the Registration Statement at the time it became effective but
that is deemed to be part of such Registration Statement at the time
it became effective (a) pursuant to paragraph (b) of Rule 430A or (b)
pursuant to paragraph (d) of Rule 434, if applicable, or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all losses, claims, expenses,
damages and liabilities whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue
statement or omission; PROVIDED that (subject to Section 6(d) below)
any such settlement is effected with the written consent of the
Offerors; and
(iii) against any and all expense whatsoever (including
the fees and disbursements of counsel chosen by Xxxxxxx Xxxxx), as
incurred, which expenses are reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
subparagraph (i) or (ii) above;
PROVIDED, HOWEVER, that the foregoing indemnity agreement shall not apply to any
loss, claim, expense, damage or liability (x) to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in the
Prospectus in reliance upon and in conformity with information furnished in
writing to the Offerors by any Underwriter through Xxxxxxx Xxxxx specifically
for inclusion and actually included therein and (y) with respect to any
preliminary prospectus to the extent that any such loss, claim, expense, damage
or liability of such Underwriter results from the fact that such Underwriter
sold Preferred Securities to a person as to whom it shall be established by the
Company that there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus (as then amended or
supplemented) in any case where such delivery is required by the 1933 Act, if
such Underwriter failed to make reasonable efforts generally consistent with the
then prevailing industry practice to effect such delivery and the Company has
previously furnished copies thereof in sufficient quantities to such Underwriter
and the loss, claim, expense, damage or liability of such Underwriter results
from an untrue statement or omission of a material fact contained in the
preliminary prospectus that was corrected in the Prospectus.
(b) Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless the Company, the Trust, the Trustees and each of the
Company's directors, each of the Company's officers who signed the Registration
Statement and each person, if any, who controls the Company or the Trust within
the meaning of Section 15 of the 1933 Act, to the same extent as the foregoing
indemnity from the Offerors to each Underwriter, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Prospectus in reliance upon and in conformity with information furnished in
writing to the Offerors by such Underwriter through Xxxxxxx Xxxxx specifically
for inclusion and actually included therein.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve it from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability that it may have otherwise
than on account of this indemnity agreement. In the case of parties indemnified
pursuant to paragraph 6(a) above, counsel to the indemnified parties shall be
selected by Xxxxxxx Xxxxx, and, in the case of parties indemnified pursuant to
paragraph 6(b) above, counsel to the indemnified parties shall be selected by
the Offerors. An indemnifying party may participate at its own expense in the
defense of such action; provided, however, that counsel to the indemnifying
party shall not (except with the consent of the indemnifying party) also be
counsel to the indemnified party. In no event shall the indemnifying party or
parties be liable for the fees and expenses of more than one counsel (in
addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding 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 at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a) (ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
Notwithstanding the immediately preceding sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, an indemnifying party shall
not be liable for any settlement of the nature contemplated by Section 6(a) (ii)
effected without its consent if such indemnifying party (x) reimburses such
indemnified party in
accordance with such request to the extent it considers such request to be
reasonable and (y) provides written notice to the indemnified party
substantiating the unpaid balance as unreasonable, in each case prior to the
date of such settlement.
SECTION 7. CONTRIBUTION.
If the indemnification provided for in Section 6 hereof is
for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Offerors on the one
hand and the Underwriters on the other hand from the offering of the Securities
pursuant to this Agreement and the Pricing Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Offerors on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Offerors on the one
hand and the Underwriters on the other hand in connection with the offering of
the Securities pursuant to this Agreement and the Pricing Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from
the offering of the Securities pursuant to this Agreement and the Pricing
Agreement (before deducting expenses) received by the Offerors and the total
underwriting discount received by the Underwriters, in each case as set forth on
the cover of the Prospectus, bear to the aggregate initial public offering price
of the Securities as set forth on such cover.
The relative fault of the Offerors on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Offerors and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to 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 0000 Xxx) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company and
each Trustee of the Trust who signed the Registration Statement, and each
person, if any, who controls the Company and the Trust within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Offerors. The Underwriters' respective obligations
to contribute pursuant to this Section 7 are several in proportion to the number
of Preferred Securities set forth opposite their respective names in Schedule A
hereto and not joint.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. The representations, warranties, indemnities, agreements and other
statements of the Trust, the Company or its officers and of the Underwriters set
forth in or made pursuant to this Agreement will remain operative and in full
force and effect regardless of any investigation made by or on behalf of the
Trust, the Company, any Underwriter or any controlling person thereof, and will
survive delivery of and payment for the Securities.
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Representatives may terminate this Agreement and the
Pricing Agreement, by notice to the Company and the Trust, at any time at or
prior to the Closing Time or, with respect to the Option Securities, any Date of
Delivery, (i) if there has been, since the time of execution of this Agreement
or the Pricing Agreement or since the respective dates as of which information
is given in the Prospectus, any material adverse change in the condition
(financial or otherwise), earnings, business affairs or business prospects of,
the Company and its subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business, (ii) if there has occurred any
material adverse change in the financial markets in the United States or
internationally or any outbreak of hostilities or escalation of existing
hostilities or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
judgment of the Representatives, impracticable to market the Securities, or
enforce contracts for the sale of the Securities, (iii) if trading in any
securities of the Company has been suspended or materially limited by the
Commission or the New York Stock Exchange, or if trading generally on the New
York Stock Exchange, the American Stock Exchange or the Nasdaq National Market
has been suspended or materially limited, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for securities have been
required, by any of such exchanges or by such system or by order of the
Commission, the NASD or any other governmental authority or (iv) if a banking
moratorium has been declared by either Federal, Alabama, Delaware or New York
State authorities.
This Agreement and the Pricing Agreement may also terminate
pursuant to the provisions of Section 5, with the effect stated in such Section.
(b) If this Agreement and the Pricing Agreement are
terminated pursuant to this Section 9, such termination shall be without
liability of any party to any other party except as
provided in Section 4 hereof, and except that Sections 1, 6, 7 and 8 shall
survive any such termination and will remain in full force and effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more
of the Underwriters shall fail at Closing Time to purchase the Preferred
Securities that it or they are obligated to purchase under this Agreement and
the Pricing Agreement (the "Defaulted Securities"), the Representatives shall
have the right, within 24 hours thereafter, to make arrangements for one or more
of the non-defaulting Underwriters, or any other Underwriter, to purchase all,
but not less than all, of the Defaulted Securities in such amounts as may be
agreed upon and upon the terms herein set forth; if, however, the
Representatives shall not have completed such arrangements within such 24-hour
period, then the Company and the Trust shall have the right, within 24 hours
after the expiration of such previous 24-hour period, to procure another party
or other parties reasonably satisfactory to the Representatives to purchase the
Defaulted Securities in such amounts as may be agreed upon and upon the terms
herein set forth; if, however, the Company and the Trust shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10%
of the Preferred Securities, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
Preferred Securities, this Agreement and the Pricing Agreement shall terminate
without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement and the Pricing Agreement, either the
Representatives or the Offerors shall have the right to postpone Closing Time
for a period not exceeding seven days in order to effect any required changes in
the Registration Statement or Prospectus or in any other documents or
arrangements.
SECTION 11. NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given, upon
receipt, if delivered, mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed to the
Representatives at Xxxxxxx Xxxxx World Headquarters, North Tower, World
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 (telecopier no.: (212)
449-6739), attention of Xx. Xxxx Xxxxxxxxx with a copy to Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, Xxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (telecopier no.:
(000) 000-0000), attention of Xxxxx X. Xxxxxxxxxx, Esq.; and notices to the
Trust and the Company shall be directed to them at Protective Life Corporation,
0000 Xxxxxxx 000 Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000 (telecopier no.: (205)
868-3597), attention of Xxxxxxx X. Xxxx, Senior Vice President, General Counsel
and Secretary.
SECTION 12. PARTIES. This Agreement and the Pricing Agreement
shall inure to the benefit of and be binding upon the Underwriters and the
Offerors and their respective successors. Nothing expressed or mentioned in this
Agreement or the Pricing Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters and the Offerors and
their respective successors and the controlling persons and officers, directors
and trustees referred to in Section 6 and their heirs and legal representatives,
any legal or equitable right, remedy or claim under or in respect of this
Agreement or the Pricing Agreement or any provision herein or therein contained.
This Agreement and the Pricing Agreement and all conditions and provisions
hereof and thereof are intended to be for the sole and exclusive benefit of the
Underwriters and the Offerors and their respective successors, and said
controlling persons and officers, directors and trustees and their heirs and
legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. This Agreement and the
Pricing Agreement shall be governed by and construed in accordance with the laws
of the State of New York, without giving effect to the provisions thereof
relating to conflicts of law. Specified times of day refer to New York City
time.
SECTION 14. COUNTERPARTS. Each of this Agreement and the
Pricing Agreement may be executed by any one or more of the parties hereto in
any number of counterparts, each of which shall be deemed to be an original, but
all such respective counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Trust a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Trust and the Company in accordance
with its terms.
Very truly yours,
PROTECTIVE LIFE CORPORATION
By: ______________________________
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President,
Secretary, and General Counsel
PLC CAPITAL TRUST IV
By: ______________________________
Name: Xxxxxxx X. Xxxxxx
Title: Regular Trustee
CONFIRMED AND ACCEPTED,
as of the date first above written.
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
X.X. Xxxxxxx & Sons, Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
Wachovia Securities, Inc.
Xxxxxx Xxxxxx & Company, Inc.
SunTrust Capital Markets, Inc.
By: Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By: ________________________________
Name:
Authorized Signatory
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
EXHIBIT A
4,000,000 Preferred Securities
PLC CAPITAL TRUST IV
(A Delaware Trust)
7.25% Trust Originated Preferred Securities-SM- ("TOPrS-SM-"*)
(Liquidation Amount of $25.00 per Preferred Security)
PRICING AGREEMENT
------------------------
September 20, 2002
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
X.X. Xxxxxxx & Sons, Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
Wachovia Securities, Inc.
Xxxxxx Xxxxxx & Company, Inc.
SunTrust Capital Markets, Inc.
as Representatives of the several Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxx Xxxxx World Headquarters
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Reference is made to the Purchase Agreement, dated as of September 20, 2002 (the
"Purchase Agreement"), relating to the purchase by the several Underwriters
named in Schedule A thereto, for whom Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, X.X. Xxxxxxx & Sons, Inc., Xxxxxx Xxxxxxx
& Co. Incorporated, Wachovia Securities, Inc., Xxxxxx Xxxxxx & Company, Inc. and
SunTrust Capital Markets, Inc. are acting as Representatives (the
"Representatives"), of the above 4,000,000 7.25% Trust Originated Preferred
Securities (the "Preferred Securities"), of PLC Capital Trust IV, a Delaware
statutory trust (the "Trust").
Pursuant to Section 2 of the Purchase Agreement, the Trust
and Protective Life Corporation, a Delaware corporation (the "Company"), agree
with each Underwriter as follows:
----------------
* -SM- "Trust Originated Preferred Securities" and "TOPrS" are service marks of
Xxxxxxx Xxxxx & Co.
1. The initial public offering price per security for the
Preferred Securities, determined as provided in said Section 2, shall be $25.00.
2. The purchase price per security for the Preferred
Securities to be paid by the several Underwriters shall be $25.00, being an
amount equal to the initial public offering price set forth above.
3. The commission payable to the Underwriters to be paid by
the Company shall be $0.7875 per Preferred Security (or a total of $3,150,000,
assuming no exercise of the Underwriters' overallotment option).
4. The underwriters will purchase the Preferred Securities in
the amounts set forth opposite their respective names on Schedule I hereto.
5. The underwriters will have the option to purchase on one
or more occasions for a period of 30 days from the date hereof an additional
600,000 Preferred Securities solely to cover overallotments. The underwriters
will purchase these additional Preferred Securities for the same price and
commission per Preferred Security as set forth above plus accrued distributions
and on a PRO RATA basis for the amounts set forth opposite their respective
names on Schedule I hereto.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Trust a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Trust and the Company in accordance
with its terms.
Very truly yours,
PROTECTIVE LIFE CORPORATION
By: ______________________________
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President,
Secretary, and General Counsel
PLC CAPITAL TRUST IV
By: _____________________________
Name: Xxxxxxx X. Xxxxxx
Title: Regular Trustee
CONFIRMED AND ACCEPTED,
as of the date first above written.
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
X.X. Xxxxxxx & Sons, Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
Wachovia Securities, Inc.
Xxxxxx Xxxxxx & Company, Inc.
SunTrust Capital Markets, Inc.
By: Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By: ________________________________
Name:
Authorized Signatory
For themselves and as Representatives of the other
Underwriters named in Schedule A hereto
SCHEDULE A
NUMBER OF TRUST
UNDERWRITER PREFERRED SECURITIES
----------- --------------------
Xxxxxxx Lynch, Pierce, Xxxxxx & -SM-ith Incorporated 820,000
X.X. Xxxxxxx & Sons, Inc. 805,000
Xxxxxx Xxxxxxx & Co. Incorporated 805,000
Wachovia Securities, Inc. 805,000
Xxxxxx Xxxxxx & Company, Inc. 150,000
SunTrust Capital Markets, Inc. 150,000
Bear, Xxxxxxx & Co. Inc. 30,000
H&R Block Financial Advisors, Inc. 30,000
Deutsche Bank Securities Inc. 30,000
HSBC Securities (USA) Inc. 30,000
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated 30,000
McDonald Investments Inc., a KeyCorp Company 30,000
Quick & Xxxxxx, Inc. 30,000
RBC Xxxx Xxxxxxxx Inc. 30,000
Xxxxxxx Xxxxx & Associates, Inc. 30,000
Xxxxxxx Xxxxxx & Co., Inc. 30,000
U.S. Bancorp Xxxxx Xxxxxxx Inc. 30,000
BB&T Capital Markets, a division of Xxxxx and Xxxxxxxxxxxx, Inc. 15,000
CIBC World Markets Corp. 15,000
X.X. Xxxxxxxx & Co. 15,000
Xxxxxxxxx & Company LLC 15,000
Xxxxxxxxxx & Co. Inc. 15,000
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc. 15,000
Xxxxxx Xxxxxxxxxx Xxxxx LLC 15,000
Xxxxxx/Hunter Incorporated 15,000
SWS Securities, Inc. 15,000
Total 4,000,000
Exhibit B
[Comfort Letter]
