EXHIBIT 1(f)
PROTECTIVE LIFE CORPORATION
(A DELAWARE CORPORATION)
PLC CAPITAL TRUST II
(A DELAWARE BUSINESS TRUST)
2,000,000 FELINE PRIDES
FORM OF UNDERWRITING AGREEMENT
DATED: NOVEMBER , 1997
PROTECTIVE LIFE CORPORATION
(A DELAWARE CORPORATION)
PLC CAPITAL TRUST II
(A DELAWARE BUSINESS TRUST)
FELINE PRIDES (-SM-)(TOPRS-SM-)
(STATED AMOUNT OF $50 PER FELINE PRIDES)
EACH CONSISTING OF
A PURCHASE CONTRACT OF PROTECTIVE LIFE CORPORATION
REQUIRING THE PURCHASE ON FEBRUARY 16, 2001
(OR EARLIER) OF CERTAIN SHARES OF COMMON STOCK OF
PROTECTIVE LIFE CORPORATION
AND
A % TRUST ORIGINATED PREFERRED SECURITY-SM- (TOPRS-SM-)
OF PLC CAPITAL TRUST II
FORM OF UNDERWRITING AGREEMENT
------------------------------
November , 0000
XXXXXXX XXXXX & XX.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXXX, SACHS & CO.
XXX-XXXX, XXXXXX INC.
THE XXXXXXXX-XXXXXXXX COMPANY, LLC
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxx Xxxxx World Headquarters
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
----------------------
"FELINE PRIDES," "Income PRIDES," "Trust Originated Preferred
Securities" and "TOPrS" are service marks of Xxxxxxx Xxxxx & Co. Inc.
Ladies and Gentlemen:
Protective Life Corporation, a Delaware corporation (the "Company"), and
PLC Capital Trust II, a Delaware statutory business trust (the "Trust" and,
together with the Company, the "Offerors"), confirm their agreement with Xxxxxxx
Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx
Xxxxx"), Xxxxxxx, Xxxxx & Co., Xxx-Xxxx, Xxxxxx Inc. and The Xxxxxxxx-Xxxxxxxx
Company, LLC and each of the underwriters named in Schedule A hereto
(collectively, the "Underwriters", which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), for whom Xxxxxxx
Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx
Xxxxx"), Xxxxxxx, Xxxxx & Co., Xxx-Xxxx, Xxxxxx Inc. and The Xxxxxxxx-Xxxxxxxx
Company, LLC serves as representative (in such capacity, the "Representative")
(the "Underwriter"), with respect to the sale to the Underwriters of 2,000,000
FELINE PRIDES (the "Initial Securities"), each of which will initially consist
of a unit (referred to as Income PRIDES-SM-) with a Stated Amount of $50
comprised of (a) a stock purchase contract (the "Purchase Contract") under which
(i) the holder will purchase from the Company on February 16, 2001, a number of
shares of common stock, par value $.50 per share, of the Company (the "Common
Stock") equal to the Settlement Rate as set forth in the Purchase Contract
Agreement (defined below) and (ii) the Company will pay to the holder contract
adjustment payments, if any, and (b) beneficial ownership of a % Trust
Originated Preferred Security (the "Preferred Security") of the Trust, having a
stated liquidation amount of $50. The Company and the Trust also propose to
grant to the Underwriters an option to purchase up to 300,000 additional Income
PRIDES (the "Option Securities" and together with the Initial Securities, the
"Securities") as described in Section 2(b) hereof. In accordance with the terms
of the Purchase Contract Agreement, to be dated as of November , 1997, between
the Company and The Bank of New York, as Purchase Contract Agent (the "Purchase
Contract Agent"), the Preferred Securities constituting a part of the Securities
will be pledged by the Purchase Contract Agent, on behalf of the holders of the
Securities, to The Chase Manhattan Bank, as Collateral Agent, pursuant to the
Pledge Agreement, to be dated as of November , 1997 (the "Pledge Agreement"),
among the Company, the Purchase Contract Agent and the Collateral Agent, to
secure the holders' obligation to purchase Common Stock under the Purchase
Contracts. The rights and obligations of a holder of Securities in respect of
Preferred Securities, subject to the pledge thereof and Purchase Contracts will
be evidenced by Security Certificates (the "Secu-
rity Certificates") to be issued pursuant to the Purchase Contract Agreement.
The Preferred Securities will be guaranteed by the Company with respect to
distributions and payments upon liquidation, redemption and otherwise (the
"Preferred Securities Guarantee") pursuant to the Preferred Securities Guarantee
Agreement, to be dated as of November , 1997 (the "Preferred Securities
Guarantee Agreement"), between the Company and Wilmington Trust Company, as
trustee (the "Guarantee Trustee"), for the benefit of the holders from time to
time of the Preferred Securities, and certain back-up undertakings of the
Company. All, or substantially all, of the proceeds from the sale of the
Preferred Securities will be combined with the entire net 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") guaranteed
by the Company 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 November , 1997 (the "Common Securities
Guarantee Agreement" and, together with the Preferred Securities Guarantee
Agreement, the "Guarantee Agreements"), between the Company and the Guarantee
Trustee for the benefit of the holders from time to time of the Common
Securities, and certain backup-undertakings of the Company, and will be used by
the Trust to purchase the % Subordinated Debt Securities due February 17,
2003 (the "Subordinated Debt Securities") of the Company. The Preferred
Securities and the Common Securities will be issued pursuant to the amended and
restated declaration of trust of the Trust, to be dated as of November , 1997
(the "Declaration"), among the Company, as Sponsor, Xxxxxxx X. Xxxxxx and Xxxxx
X. XxXxxx (the "Regular Trustees"), and Wilmington Trust Company, as the
institutional trustee (the "Institutional Trustee") and as the Delaware trustee
(the "Delaware Trustee" and, together with the Institutional Trustee and the
Regular Trustees, the "Trustees"), and the holders from time to time of
undivided beneficial interests in the assets of the Trust. 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 AmSouth Bank of
Alabama (as successor by merger to AmSouth Bank of Alabama, as successor by
conversion of charter to AmSouth Bank, N.A.), 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
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No. 3, dated as of April 29, 1997 ("Supplemental Indenture No. 3") and
Supplemental Indenture No. 4, to be dated as of November __, 1997 ("Supplemental
Indenture No. 4" 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. Capitalized terms used herein without
definition shall be used as defined in the Prospectus.
Prior to the purchase and public offering of the Securities by the several
Underwriters, the Offerors and 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 communication between the Offerors and the Underwriters
and shall specify such applicable information as is indicated in Exhibit A
hereto. The offering of the 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 Company, the Trust, PLC Capital Trust III, PLC Capital Trust IV
(collectively, the "PLC Capital Trusts") have filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3 (No.
333-30905) and post-effective amendment no. 1 thereto covering the registration
of securities of the Company and the Trust, including the Securities and the
Purchase Contracts and Preferred Securities included in and shares of Common
Stock underlying, the Securities, under the Securities Act of 1933, as amended
(the "1933 Act"), including the related preliminary prospectus or prospectuses,
and the offering thereof from time to time in accordance with the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations")
and the Company has filed such post-effective amendments thereto as may be
required prior to the execution of the Pricing Agreement. Such registration
statement, as so amended, has been declared effective by the Commission. Such
registration statement, as so amended, as declared effective excluding the
exhibits 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, and the
information, if any, deemed to be a part thereof pursuant to Rule 430A(b) of the
1933 Act Regulations (the "Rule 430A Information") or Rule 434(d) of the 1933
Act Regulations (the "Rule 434 Information"), is referred to herein as the
"Registration Statement"; and the final prospectus relating to the offering of
the Securities, in the form first furnished to the Underwriters by the Company
for use
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in connection with the offering of the Securities, are collectively referred to
herein as the "Prospectus"; PROVIDED, HOWEVER, that all references to the
"Registration Statement" and the "Prospectus" shall be deemed to include all
documents incorporated therein by reference pursuant to item 12 of Form S-3
under the 1933 Act, prior to the execution of the applicable Pricing Agreement;
PROVIDED, FURTHER, that if the Offerors file a registration statement with the
Commission pursuant to Section 462(b) of the 1933 Act Regulations (the "Rule
462(b) Registration Statement"), then after such filing, all references to
"Registration Statement" shall be deemed to include the Rule 462(b) Registration
Statement; and PROVIDED, FURTHER, that if the Offerors elect to rely upon Rule
434 of the 1933 Act Regulations, then all references to "Prospectus" shall be
deemed to include the final or preliminary prospectus and the applicable term
sheet or abbreviated term sheet (the "Term Sheet"), as the case may be, in the
form first furnished to the Underwriters by the Company in reliance upon Rule
434 of the 1933 Act Regulations, and all references in this Underwriting
Agreement to the date of the Prospectus shall mean the date of the Term Sheet. A
"preliminary prospectus" shall be deemed to refer to any prospectus used before
the registration statement became effective and any prospectus that omitted, as
applicable, the Rule 430A Information, the Rule 434 Information or other
information to be included upon pricing in a form of prospectus filed with the
Commission pursuant to Rule 424(b) of the 1933 Act Regulations, that was used
after such effectiveness and prior to the execution and delivery of the
applicable Pricing Agreement. For purposes of this Agreement, all references to
the Registration Statement, any preliminary prospectus, the Prospectus or any
Term Sheet or any amendment or supplement to any of the foregoing shall be
deemed to include the electronically transmitted copy thereof 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 which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
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")
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which 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 Underwriters deem advisable after the
Pricing Agreement has been executed and delivered and the Declaration, the
Indenture and the Preferred Securities Guarantee Agreement have been qualified
under the Trust Indenture Act of 1939, as amended (the "1939 Act").
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) The Offerors represent and warrant to each Underwriter as of the dates
hereof and as of the date of the Pricing Agreement and each Date of Delivery,
(as defined in Section 2(b))(such later date being hereinafter referred to as
the "Representation Date") that:
(i) 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) The Company and the Trust meet, and at the respective times of
the commencement and consummation of the offering of the Securities will
meet, the requirements for the use of Form S-3 under the 1933 Act. Each of
the Registration Statement and the Rule 462(b) Registration Statement has
become effective under the 1933 Act. At the respective times the
Registration Statement, the Rule 462(b) Registration Statement and any
post-effective amendments thereto became effective and at each
Representation Date, the Registration Statement, the Rule 462 Registration
Statement and any amendments or supplements thereto, as of their respective
effective dates, complied and will comply 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 1939 Act (the
"1939 Act Regulations"), and, as of their respective effective dates, 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 and
at the Closing Time (as defined herein), the Prospectus and any amendments
or supplements thereto did not and will not
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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, the Offerors make no representations or warranties as to (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 or omitted from the
Registration Statement or the Prospectus made 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. If
the Offerors elect to rely upon Rule 434 of the 1933 Act Regulations, the
Offerors will comply with the requirements of Rule 434.
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 under the 1933 Act, 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 transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(iii) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement or the Prospectus, at the time they
were or hereafter are filed or last amended, as the case may be, with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act, and the rules and regulations of Commission
thereunder (the "1934 Act Regulations"), and at the time of filing or as of
the time of any subsequent amendment, did not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were or are made, not misleading;
(iv) The accountants who certified the financial statements and
supporting schedules included or incorporated
6
by reference in the Registration Statement and the Prospectus are
independent public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(v) 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 started 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 in the Registration Statement.
(vi) 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.
(vii) 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
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business under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, and is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction.
(viii) Protective Life Insurance Company ("Protective Life Insurance")
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.
(ix) Protective Life Insurance 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 Protective Life Insurance 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.
(x) The Trust has been created and is validly existing and in good
standing as a business trust under the Delaware
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Business Trust Act (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 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 generally accepted accounting
principles.
(xi) The Purchase Contract Agreement has been authorized by the
Company and, at the Closing Time, when validly executed and delivered by
the Company and assuming due authorization, execution and delivery of the
Purchase Contract Agreement by the Purchase Contract Agent, will constitute
a legal, 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 bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally or by general principles of equity (regardless of whether
enforcement is considered in a proceeding at law or in equity) (the
"Bankruptcy Exceptions"), and will conform in all material respects to the
description thereof contained in the Prospectus.
(xii) The Pledge Agreement has been authorized by the Company and, at
the Closing Time, when validly executed and delivered by the Company and
assuming due authorization, execution and delivery of the Pledge Agreement
by the Collateral Agent and the Purchase Contract Agent, will constitute a
legal, 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 will conform in
all material respects to the description thereof contained in the
Prospectus.
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(xiii) The Common Securities have been authorized by the Trust
pursuant to the Declaration and, when issued and delivered by the Trust to
the Company against payment therefor as described in the Registration
Statement and Prospectus, will be validly issued and will represent
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 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.
(xiv) 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, be a valid and binding obligation of
the Company 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 the Bankruptcy Exceptions, and
will conform in all material respects to the description thereof contained
in the Prospectus; and at the Closing Time, the Declaration will have been
duly qualified under the 1939 Act.
(xv) Each of the Guarantee Agreements has been authorized by the
Company and, when validly executed and delivered by the Company, and, in
the case of the Preferred Securities Guarantee Agreement, assuming due
authorization, execution and delivery of the Preferred Securities Guarantee
by the Guarantee Trustee, will constitute 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 each of the Guarantees and the Guarantee
Agreements will conform in all material respects to the description thereof
contained in the Prospectus; and at the Closing Time, the Preferred
Securities Guarantee will have been duly qualified under the 0000 Xxx.
(xvi) The Securities have been authorized for issuance and sale to the
Underwriters and, when issued and delivered
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against payment therefor as provided herein, will be validly issued and
fully paid and non-assessable and will conform in all material respects to
the description thereof contained in the Prospectus; the issuance of the
Securities is not subject to preemptive or other similar rights.
(xvii) The shares of Common Stock to be issued and sold by the Company
pursuant to the Purchase Contract Agreement (the "Shares"), when issued and
delivered in accordance with the provisions of the Purchase Contract
Agreement and the Pledge Agreement, will be authorized, validly issued and
fully paid and non-assessable and will conform in all material respects to
the description thereof contained in the Prospectus or to any amended or
supplemented description of the Common Stock contained in a then effective
report or registration statement filed pursuant to the 1934 Act; and the
issuance of such Shares will not be subject to preemptive or other similar
rights.
(xviii) The Indenture has been duly authorized by the Company; each of
the Base Indenture, Supplemental Indenture No. 1, Supplemental Indenture
No. 2 and Supplemental Indenture No. 3 does constitute, and Supplemental
Indenture No. 4, 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.
(xix) The Subordinated Debt Securities have been authorized by the
Company and, at the Closing Time, will have been executed by the Company
and, when authenticated in the manner provided for in the Indenture and
delivered against payment therefor 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.
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(xx) Each of the Regular Trustees of the Trust is an employee of the
Company and has been authorized by the Company to execute and deliver the
Declaration.
(xxi) 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 subsidiary of
the Company which is a "significant subsidiary" (as such term is defined in
Rule 405 of the 1933 Act Regulations) (each such subsidiary, a "Significant
Subsidiary") is in violation of its charter or by-laws. None of the
Company, any Significant 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 Significant Subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business.
(xxii) The entry into the Purchase Contracts underlying the Securities
by the Company, the offer of the Securities as contemplated herein and in
the Prospectus, the issue of the Shares and the sale of the Shares by the
Company pursuant to the Purchase Contracts, the execution, delivery and
performance of this Agreement, the Pricing Agreement, the Purchase
Contracts, the Purchase Contract Agreement, the Pledge 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 not or will not 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 Significant Subsidiary, (B)
any contract, indenture, mortgage, note, lease, agreement or other
instrument to which any of the Trust, the Company and the Significant
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
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decree of any government, governmental instrumentality or court, domestic
or foreign, having jurisdiction over the Trust, the Company or any
Significant Subsidiary or any of their respective property or assets, or
did not or will not result in the creation or imposition of any lien on the
property or assets of the Trust, the Company or any Significant 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
Significant Subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business.
(xxiii) 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; and, to the best of the Company's knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(xxiv) No authorization, approval, consent, order, registration or
qualification of or with any court or governmental authority or agency is
required for the entry into the Purchase Contracts underlying the
Securities, the issuance and sale of the Common Securities, the offering of
the Securities and the issuance and sale of the Shares by the Company
pursuant to such Purchase Contracts, except such as have been obtained and
made under the federal securities laws and such as may be required under
state or foreign securities or Blue Sky laws.
(xxv) This Agreement and the Pricing Agreement have been authorized,
executed and delivered by each of the Offerors.
(xxvi) None of the Offerors is, and upon the issuance and sale of the
Securities as herein contemplated and the application of the net proceeds
therefrom as described in
13
the Prospectus will not be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended (the "1940 Act").
[(xxvii) None of the Company, its subsidiaries or any of their
respective directors, officers or controlling persons, has taken, directly
or indirectly, any action resulting in a violation of Regulation M under
the 1934 Act, or designed to cause or result in, or that has constituted or
that reasonably might be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Securities or the Common Stock.]
[(xxviii) No "forward-looking statement" (as defined in Rule 175 under
the 0000 Xxx) contained in the Registration Statement, any preliminary
prospectus or the Prospectus was made or reaffirmed without a reasonable
basis or was disclosed other than in good faith.]
(b) Any certificate signed by any officer of the Company or a Trustee of
the Trust and delivered to the Representatives or to counsel for the
Underwriters shall be deemed 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) On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Offerors agree to
sell to each Underwriter, and each Underwriter severally and not jointly, agrees
to purchase from the Offerors, at the price per security set forth in the
Pricing Agreement, the number of Initial Securities set forth in Schedule A
hereto opposite the name of such Underwriter, plus any additional number of
Initial Securities which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 10 hereof.
The initial public offering price per Security and the purchase price per
Security to be paid by the several Underwriters for the Securities have each
been determined and set forth in the Pricing Agreement, dated the date hereof,
and any necessary amendments to the Registration Statement and the Prospectus
will be filed before the Registration Statement becomes effective.
14
(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 to the Underwriters, severally and not jointly, the right to
purchase at their election up to 300,000 Option Securities at the price per
share set forth in the Pricing Agreement. The option hereby granted will expire
automatically at the close of business on the 30th calendar day after The
Representation Date and may be exercised in whole or in part from time to time
only for the purpose of covering over-allotments which may be made in connection
with the offering and distribution of the Initial Securities upon notice by the
Underwriters to the Offerors setting forth the aggregate number of additional
Optional Securities to be purchased and the time and date of delivery for the
related Option Securities. Any such time and date of delivery (a "Date of
Delivery") shall be determined by the Underwriters but shall not be later than
seven full business days after the exercise of such option, nor in any event
before the Closing Time, unless otherwise agreed upon by the Underwriters and
the Offerors. 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 from the Company the same percentage of the total number of Option
Securities as such Underwriter is purchasing of the Initial Securities as set
forth in Schedule A hereto (subject in each case to such adjustments as the
Underwriters in their discretion shall make to eliminate any fractional Option
Securities).
(c) The Preferred Securities underlying the Securities will be pledged with
the Collateral Agent to secure the holders' obligations to purchase Common Stock
under the Purchase Contracts. Such pledge shall be effected by the transfer to
the Collateral Agent of the Preferred Securities to be pledged at the Closing
Time and appropriate Date of Delivery, if any, in accordance with the Pledge
Agreement.
(d) 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 the Closing Time) shall
be made at the offices of the Underwriters in New York, against the delivery to
the Collateral Agent of the Preferred Securities relating to such Securities by
such Underwriters or on their behalf, and payment of the purchase price for such
Securities shall be made at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at such other place as shall
be agreed upon by the Underwriters and the Offerors, at 9:00 a.m.
15
(New York time) on the third business day after the execution of The Pricing
Agreement, or such other time not later than ten business days after such date
as shall be agreed upon by the Underwriters and the Offerors (such time and date
of payment and delivery being referred to herein as the "Closing Time").
Payment for the Securities purchased by the Underwriters shall be made by wire
transfer of immediately available funds, payable to the Company, against
delivery to the respective accounts of the Underwriters of the Securities to be
purchased by them. Delivery of, and payment for, the Securities shall be made
through the facilities of the Depository Trust Company. In addition, if the
Underwriters purchase any or all of the Option Securities, payment of the
purchase price and delivery of certificates for such Option Securities shall be
made at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP set forth above,
or at such other place as shall be agreed upon by the Underwriters and the
Offerors, on each Date of Delivery as specified in the relevant notice from the
Underwriters to the Offerors.
Certificates for the Initial Securities and the Option Securities, if any,
shall be in such denominations and registered in such names as the Underwriters
may request in writing at least two full business days before the Closing Time
or any Date of Delivery, as the case may be. 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 Securities, if any, to be purchased
by any Underwriter whose funds have not been received by the Closing Time, or
the Date of Delivery, as the case may be, but such payment shall not relieve
such Underwriter from its obligations hereunder. The certificates for the
Initial Securities and the Option Securities, if any, will be made available for
examination by the Underwriters no later than 10:00 a.m. (New York City time) on
the last business day prior to the Closing Time or the Date of Delivery, as the
case may be.
(e) If settlement for the Option Securities occurs after the Closing Time,
the Offerors will deliver to the Underwriters on the relevant Date of Delivery,
and the obligations of the Underwriters to purchase the Option Securities shall
be conditioned upon the receipt of, supplemental opinions, certificates and
letters confirming as of such date the opinions, certificates and letters
delivered at the Closing Time pursuant to Section 5(k) hereof.
16
SECTION 3. COVENANTS OF THE OFFERORS. The Offerors agree with the
Underwriters 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.
(b) The Offerors will comply with the requirements of Rule 430A of the
1933 Act Regulations and/or Rule 434 of the 1933 Act Regulations if and as
applicable, and will notify the Underwriters immediately, and confirm the
notice in writing, (i) of the effectiveness of any post-effective amendment
to the Registration Statement or the filing of any supplement or amendment
to the Prospectus, (ii) the receipt of any comments from the Commission,
(iii) of 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) of 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) of 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 or the Shares 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.
(c) The Offerors will give the Underwriters notice of their intention
to file or prepare any amendment to the Registration Statement (including
any post-effective amendment and any filing under Rule 462(b) of the 1933
Act Regulations), any Term Sheet or any amendment, supplement or revision
to either the prospectus included in the Registration Statement at the time
it became effective or to the Prospectus, whether pursuant to the 1933 Act,
the 1934 Act or otherwise; will furnish the Underwriters with copies of any
such Rule 462(b) Registration Statement, Term Sheet, amendment, supplement
or revision a reasonable amount of time prior to such proposed filing or
use, as the case may be; and will not file any such Rule 462(b)
Registration Statement, Term Sheet, amendment, supplement or revision to
17
which the Underwriters or counsel for the Underwriters shall reasonable
object.
(d) 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 or deemed to be 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.
(e) The Company has delivered to each Underwriter, without charge, as
many copies of each preliminary prospectus as such Underwriter reasonably
requested, and the Company hereby consents to the use of such copies for
purposes permitted by the 1933 Act. The Company 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 to the
electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(f) 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 or the 1934 Act
to be delivered in connection with 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
18
misleading or to amend or supplement the Prospectus in order that the
Prospectus 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 not misleading in the light of the circumstances existing at the
time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time 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 promptly prepare and file with the Commission, subject to
Section 3(c), such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement
or the Prospectus comply with such requirements, 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.
(g) The Company will make generally available to its securityholders
as soon as practicable, but not later than 45 days (or 90 days, in the case
of a period that is also the Company's fiscal year) after the close of the
period covered thereby, an earnings statement of the Company and its
subsidiaries (in form complying with the provisions of Rule 158 of the 1933
Act Regulations) covering a twelve-month period beginning not later than
the first day of the Company's fiscal quarter next following the "effective
date" (as defined in said Rule 158) of the Registration Statement.
(h) The Company will use the net proceeds received by it from the sale
of the Securities in the manner specified in the Prospectus under "Use of
Proceeds".
(i) If the Offerors elect to rely upon Rule 462(b), the Offerors shall
file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of
the 1933 Act Regulations by the earlier of (i) 10:00 p.m. Eastern time on
the date of the Pricing Agreement and (ii) the time confirmations are sent
or given, as specified by Rule 462(b)(2).
(j) The Offerors, 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
19
time periods required by the 1934 Act and the 1934 Act Regulations.
(k) The Offerors will use their best efforts to effect the listing of
the Income PRIDES and the Shares on the New York Stock Exchange and to
cause the Securities to be registered under the 1934 Act.
(l) 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 Income PRIDES, Purchase Contracts, Preferred
Securities or Common Stock or any security convertible into or exchangeable
or exercisable for Securities, Purchase Contracts, Preferred Securities,
Common Stock or the Subordinated Debt Securities, or any equity securities
substantially similar to the Securities, Preferred Securities, Purchase
Contracts or Common Stock or any debt securities substantially similar to
the Subordinated Debt Securities; PROVIDED, HOWEVER, that such restriction
shall not affect the ability of the Offerors to take any such action (i) in
connection with any employee benefit, dividend reinvestment, stock option
or stock purchase plan of the Company or its subsidiaries; (ii) in
connection with any Securities issued pursuant to a merger or acquisition;
(iii) in connection with the offering of the Securities, including the
Preferred Securities, and the Subordinated Debt Securities issued pursuant
to this Agreement or (iv) upon exercise of stock options; [or (B) enter
into any swap or any other agreement or any transaction that transfers, in
whole or in part, directly or indirectly, the economic consequence of
ownership of the Securities, any security convertible into or exchangeable
into or exercisable for the Securities or Subordinated Debt Securities or
any debt securities substantially similar to the Subordinated Debt
Securities or equity securities substantially similar to the Securities,
whether any such swap or transaction is to be settled by delivery of
Securities, Subordinated Debt Securities or other securities, in cash or
otherwise.]
[(m) The Company, during a period of three years from the Closing
Time, will make generally available to the Underwriters copies of all
reports and other communications (financial or other) mailed to
stockholders, and deliver to the Underwriters promptly after they are
available, copies of any reports and financial statements furnished to or
20
filed with the Commission or any national securities exchange on which any
class of securities of the Company is listed; and shall furnish such
additional information concerning the business and financial condition of
the Company as the Underwriters may from time to time reasonably request
(such financial statements to be on a consolidated basis to the extent the
accounts of the Company and its subsidiaries are consolidated in reports
furnished to its stockholders generally or to the Commission).]
(n) The Company will reserve and keep available at all times, free of
preemptive or other similar rights and liens and adverse claims, sufficient
shares of Common Stock to satisfy any obligations to issue Shares upon
settlement of the Purchase Contracts and shall take all actions necessary
to keep effective the Registration Statement with respect to the Shares.
[(o) None of the Company, its subsidiaries or any of their respective
directors, officers or controlling persons, will take, directly or
indirectly, any action resulting in a violation of Regulation M under the
1934 Act, or designed to cause or result in, or that reasonably might be
expected to constitute, the stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the
Securities or the Common Stock.]
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, the Pricing
Agreement, the Purchase Contracts, the Purchase Contract Agreement and the
Pledge 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
financial statements and exhibits) and of each amendment thereto; (ii) the
preparation, issuance and delivery of the certificates for the Securities and
the Shares; (iii) the fees and disbursements of the Company's counsel,
accountants and other advisors or agents (including the transfer agents and
registrars), as well as fees and disbursements of the Trustees, the Purchase
Contract Agent, the Collateral Agent and any Depositary, and their respective
counsel (except as provided for in the Prospectus); (iv) the qualification of
the Securities and the Shares under securities laws in accordance with the
provisions of Section 3(g), including filing fees and the fees and disbursements
of counsel for the Underwriters in connection therewith and in connection with
the preparation of the Blue Sky Survey and any
21
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, any Term Sheet and of the Prospectus
and any amendments or supplements thereto; (vi) the printing and delivery to the
Underwriters of copies of the Blue Sky Survey and any Legal Investment Survey;
(vii) any fees payable in connection with the rating of the Securities by
nationally recognized statistical rating organizations; (viii) any fees payable
to the Commission; (ix) any fees payable or expenses incurred pursuant to any
Uniform Commercial Code related filings; and (x) the fees and expenses incurred
in connection with the listing of the Income PRIDES and the Shares on the New
York Stock Exchange.
If this Agreement is terminated by the Underwriters in accordance with the
provisions of Section 5 or Section 9(a)(i) 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 Securities pursuant to this
Agreement are subject to the accuracy of the representations and warranties of
the Offerors herein contained or in certificates of any officer of the Company
or any subsidiary or the Trustees of the Trust delivered pursuant to the
provisions hereof, to the performance by the Offerors of their obligations
hereunder, and to the following further conditions:
(a) The Registration Statement, including any Rule 462(b) Registration
Statement, shall have become effective under the 1933 Act not later than
5:30 p.m., New York City time, on the date hereof, and on the date hereof
and at the Closing Time and any Date of Delivery, no stop order suspending
the effectiveness of the Registration Statement or any part thereof 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
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 (or any required post-effective amendment providing such
information shall have been filed and declared
22
effective in accordance with the requirements of Rule 430A), or, if the
Company has elected to rely upon Rule 434 of the 1933 Act Regulations, a
Term Sheet including the Rule 434 Information shall have been filed with
the Commission in accordance with Rule 424(b)(7).
(b) At the Closing Time the Underwriters shall have received:
(1) The favorable opinion, dated as of the Closing Time, 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 in form and 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 Protective Life
Insurance 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,
23
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) None of the entry into the Purchase Contracts underlying
the Securities by the Company, the offer of the Securities as
contemplated herein and in the Prospectus, the issue of the
Shares and the sale of the Shares by the Company pursuant to the
Purchase Contracts, the execution, delivery and performance of
this Agreement, the Pricing Agreement, the Purchase Contracts,
the Purchase Contract Agreement, the Pledge 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 con-
24
tract, indenture, mortgage, agreement, note, lease or other
agreement or instrument known to such counsel to which any of the
Trust, the Company and Protective Life Insurance 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 Protective Life
Insurance 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 Protective Life
Insurance 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
Protective Life Insurance 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 Protective Life Insurance 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 Securities being delivered or the consummation by
the Company
25
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.
(viii) All conditions precedent provided for in the Purchase
Contract Agreement relating to the authentication and delivery of
the Security Certificates have been complied with and the Company
is duly entitled to the authentication and delivery of the
Security Certificates in accordance with the terms of the
Purchase Contract Agreement; the Security Certificates are in a
form contemplated by the Purchase Contract Agreement and comply
with all applicable statutory requirements and with the
requirements of the New York Stock Exchange.
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
26
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 date hereof and the Closing Time
(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 opinion required hereby, (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 Debevoise & Xxxxxxxx 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 the Representatives 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 Underwriters 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
Underwriters), PROVIDED that such counsel shall state that she
believes that both she and the Underwriters are justified in relying
upon such certificates.
(2) The favorable opinion, dated as of the Closing Time, of
Debevoise & Xxxxxxxx, special counsel to the Offerors, in form and
substance satisfactory to counsel for the Underwriters and subject to
the qualifications and assumptions stated therein, to the effect that:
27
(i) At the time the Registration Statement became effective,
the Registration Statement (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)
complied 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
complied 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, 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.
28
(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, each of the Guarantees, 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 the FELINE PRIDES," "Description of the Purchase
Contracts," "Certain Provisions of the Purchase Contract
Agreement and the Pledge Agreement," "Description of the
Preferred Securities", "Description of the Preferred Securities
Guarantee", "Description of the Subordinated Debt Securities"
"Effect of Obligations under the Subordinated Debt Securities and
the Preferred Securities Guarantee," and "Description of the
Common Stock," insofar as such statements constitute summaries of
certain provisions of the documents and laws referred to therein,
has been reviewed by such counsel and fairly summarizes the
material provisions of such documents and laws.
(vii) The Securities have been authorized for issuance and
sale to the Underwriters pursuant to this Agreement and, when
issued and delivered by the Company pursuant to this Agreement
against payment of the consideration set forth in the Pricing
Agreement, will be validly issued and fully paid and
non-assessable; the Common Stock and the Securities are each
registered under the 1934 Act, and the Income PRIDES issuable at
the Closing Time and the Shares issuable by the Company pursuant
to the Purchase Contracts have been authorized for listing on the
New York Stock Exchange, upon official notice of issuance.
(viii) The Shares subject to the Purchase Contract Agreement
have been validly authorized and reserved for issuance and, when
issued and delivered by the Company in accordance with the
provisions of the Purchase Contract Agreement, the Purchase
Contracts and the Pledge Agreement, will
29
be fully paid and non-assessable; the issuance of such Shares
will not be subject to preemptive or other similar rights arising
by law or, to the best of such counsel's knowledge, otherwise.
(ix) The issuance of the Securities is not subject to
preemptive or other similar rights arising by law or, to the best
of such counsel's knowledge, otherwise.
(x) This Agreement has been duly authorized, executed and
delivered by each of the Trust and the Company.
(xi) The Purchase Contract Agreement has been duly
authorized by the Company and, assuming due authorization,
execution and delivery of the Purchase Contract Agreement by the
Purchase Contract Agent, constitutes a legal, 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.
(xii) The Pledge Agreement has been duly authorized by the
Company and, assuming due authorization, execution and delivery
of the Pledge Agreement by the Collateral Agent and the Purchase
Contract Agent, constitutes a legal, 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.
(xiii) Each of the Guarantees and 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.
30
(xiv) 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 1939 Act.
(xv) The Securities, the Shares, the Common Securities, the
Subordinated Debt Securities, each of the Guarantees, the
Declaration and each of the Guarantee Agreements conform in all
material respects to the description thereof contained in the
Prospectus.
(xvi) 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,
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.
(xvii) 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.
(xviii) The Purchase Contract Agreement, the Purchase
Contracts underlying the Securities being delivered at the
Closing Time and at any Date of Delivery, and the Pledge
Agreement have been duly authorized, executed and delivered by
the Company and each is a valid and legally binding agreement of
the Company enforceable against the Company in accordance with
its terms, except as may be limited by the Bankruptcy Exceptions;
PROVIDED, HOWEV-
31
ER, that based on a review of applicable case law, upon the
occurrence of a Termination Event, Section 365(e)(1) of the
Bankruptcy Code (11 U.S.C. Sections 101-1330, as amended) should
not substantively limit the provisions of Sections 3.15 and 5.8
of the Purchase Contract Agreement and Section 4.3 of the Pledge
Agreement that require termination of the Purchase Contracts and
release of the Collateral Agent's security interest in the
Preferred Securities or the Treasury Securities; PROVIDED,
HOWEVER, that restrictions respecting relief from the automatic
stay under Section 362 of the Code may affect the timing of the
exercise of such rights and remedies.
(xix) When the Securities are issued in accordance with the
terms of the Purchase Contract Agreement and delivered against
payment therefor, the Securities will entitle the holders thereof
to the rights specified in the Purchase Contract Agreement.
(xx) For purposes of the opinions expressed therein, such
counsel has assumed that (1) the Pledge Agreement has been
authorized, executed and delivered by the Purchase Contract Agent
on behalf of each of the holders of the Securities from time to
time, (2) the Purchase Contract Agent is incorporated and validly
existing under the laws of the state of its incorporation, (3)
the Purchase Contract Agent and each of the holders of the
Securities has full power, authority and legal right (including,
without limitation, any legal right dependent upon there being no
necessary governmental approvals or filings and no conflict with
laws, governing documents or contracts) to make and perform its
obligations under the Pledge Agreement, (4) the Pledge Agreement
is the legal, valid, binding and enforceable obligation of the
Purchase Contract Agent on behalf of each of the holders of the
Securities from time to time, and (5) the Purchase Contract Agent
and each holder of Securities has sufficient rights in the
Preferred Securities or the Treasury Securities, as the case may
be, for the security interest of the Collateral Agent for the
benefit of the Company to attach.
32
For purposes of such counsel's opinion: (i) "UCC" means the
Uniform Commercial Code as in effect on the date thereof in the State
of New York; (ii) "FEDERAL BOOK-ENTRY REGULATIONS" means the United
States Department of Treasury regulations governing the transfer and
pledge of marketable Treasury Securities maintained in the form of
entries in the records of the Federal Reserve Banks and set forth in
61 Fed. Reg. 43,626 (1996) (to be codified at 31 C.F.R. Part 357);
(iii) "SECURITIES INTERMEDIARY" means The Bank of New York, acting
solely in its capacity as a "securities intermediary" as defined in
the UCC and the Federal Book-Entry Regulations; and (iv) "COLLATERAL
ACCOUNT" means account number C24967 maintained by the Securities
Intermediary in the name of The Bank of New York, as Purchase Contract
Agent on behalf of the holders of certain securities of PLC Capital
Trust II, Collateral Account, subject to the security interest of The
Chase Manhattan Bank, as Collateral Agent for the benefit of
Protective Life Corporation, as pledgee" pursuant to the Pledge
Agreement, dated as of November 25, 1997, among the Securities
Intermediary, the Purchase Contract Agent and the Company (the "Pledge
Agreement").
The provisions of the Pledge Agreement are effective to create,
in favor of the Collateral Agent for the benefit of the Company, a
valid security interest under the UCC in all "securities entitlements"
(as defined in Section 8-102(a)(17) of the UCC and the Federal
Book-Entry Regulations) now or hereafter credited to the Collateral
Account relating to Preferred Securities or Treasury Securities (such
securities entitlements, the "Pledged Securities Entitlements"). The
provisions of the Pledge Agreement are effective under the UCC and the
Federal Book-Entry Regulations to perfect the security interest of the
Collateral Agent for the benefit of the Company in the Pledged
Security Entitlements.
Debevoise & Xxxxxxxx shall also have stated that, while they have
not themselves checked the accuracy or completeness of or otherwise
verified, and are not passing upon and assume 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 paragraphs (vii) and (viii) above, in the course of their
review and discus-
33
sion of the contents of the Registration Statement and the Prospectus
with certain officers and employees of the Company and its independent
accountants, but without independent check or verification, no facts
have come to the attention of such counsel that would cause such
counsel to believe that the Registration Statement or the Prospectus,
as amended or supplemented, as of the date hereof and the Closing Time
(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 such counsel 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, Debevoise & Xxxxxxxx may
state that they express 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 and Delaware. 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 such counsel believes that you
and such counsel are entitled to so rely.
(3) The favorable opinion, dated as of the Closing Time, of
Xxxxxxxx, Xxxxxx & Finger, special Delaware counsel to the Offerors,
in form and substance satisfactory to counsel for the Underwriters, to
the effect that:
(i) The Trust has been created and is validly existing in
good standing as a business trust under the Delaware Act, and has
the business trust power and authority to conduct its business as
described in the Prospectus.
(ii) The Declaration constitutes a legal, valid and binding
obligation of the Company and is enforceable against the Company
in accordance with its terms, except that to the extent
enforceability thereof may be limited by the (i) bankruptcy,
insolvency, moratorium, receivership, reorgani-
34
zation, liquidation, fraudulent conveyance and other similar laws
relating to or affecting the rights and remedies of creditors
generally, (ii) principles of equity, including applicable law
relating to fiduciary duties (regardless of whether considered
and applied in a proceeding in equity or at law), and (iii) the
effect of applicable public policy on the enforcement of
provisions related to indemnification.
(iii) Under the Delaware Act and the Declaration, the Trust
has the power and authority 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
Trust Securities.
(iv) Under the Delaware Act and the Declaration, the
execution and delivery by the Trust of this Agreement and the
Pricing Agreement, and the performance by the Trust of its
obligations hereunder and under the Pricing Agreement, have been
authorized by all necessary action on the part of the Trust.
(v) The Preferred Securities have been authorized by the
Declaration and, when executed by the Trust and authenticated by
the Institutional Trustee in accordance with the Declaration and
delivered against payment therefor in accordance with the terms
of this Agreement, will be validly issued and, subject to
qualifications hereinafter expressed, 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 authorized by the
Declaration and, when issued, executed and authenticated in
accordance with the terms
35
of the Declaration, and delivered and paid for as set forth in
the Prospectus, will be validly issued, undivided beneficial
interests in the assets of the Trust.
(vii) Under the Delaware Act and the Declaration, the
issuance of the Trust Securities is not subject to preemptive or
other similar rights.
(viii) None of the execution and delivery by the Trust of,
or the performance by the Trust of its obligations under, this
Agreement, the issuance and sale of the Preferred Securities by
the Trust in accordance with the terms of this Agreement and the
Pricing Agreement, or the consummation by the Trust of the other
transactions contemplated thereby, will contravene any provisions
of applicable Delaware law or Delaware administrative regulations
or the Certificate of Trust or the Declaration.
(ix) No authorization, approval, consent, order,
registration or qualification of or with any Delaware state
governmental authority or Delaware state agency is required for
the issuance and sale by the Trust of the Securities to the
Underwriters, or the performance by the Trust of its obligations
under this Agreement, the Pricing Agreement, the Preferred
Securities, the Declaration and the Trust Securities, except such
as has been obtained and made under the federal securities laws
or such as may be required under state or foreign securities or
Blue Sky laws.
(4) The favorable opinion, dated as of the Closing Time, of
Xxxxxxxx, Xxxxxx & Finger, counsel to Wilmington Trust Company, as
Delaware Trustee, Institutional Trustee under the Declaration, and
Guarantee Trustee under the Preferred Securities Guarantee Agreement,
in form and substance satisfactory to counsel for the Underwriters, to
the effect that:
(i) Wilmington Trust Company is duly incorporated, validly
existing and in good standing as a banking corporation under the
laws of the State of Delaware with all necessary power and
authority to execute and deliver, and to carry out and per-
36
form 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 corporation 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, and constitute
the legal, valid and binding obligations of the Institutional
Trustee and the Guarantee Trustee, respectively, enforceable
against the Institutional Trustee and the Guarantee Trustee,
respectively, in accordance with their terms, except to the
extent enforcement thereof may be limited by the Bankruptcy
Exceptions.
(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 By-laws 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 and the Guarantee Trustee of the
Declaration and the Preferred Securities Guarantee Agreement.
(5) The favorable opinion, dated as of the Closing Time, of
Xxxxx, Xxxxxx & Xxxxxx, counsel to The Bank of New York, as Purchase
Contract Agent, in form and substance satisfactory to counsel for the
Underwriters, to the effect that:
37
(i) The Bank of New York is duly incorporated and is validly
existing as a banking corporation with trust powers under the
laws of the United States with all necessary power and authority
to execute, deliver and perform its obligations under the
Purchase Contract Agreement and the Pledge Agreement.
(ii) The execution, delivery and performance by the Purchase
Contract Agent of the Purchase Contract Agreement and the Pledge
Agreement, and the authentication and delivery of the Securities
have been duly authorized by all necessary corporate action on
the part of the Purchase Contract Agent. The Purchase Contract
Agreement and the Pledge Agreement have been duly executed and
delivered by the Purchase Contract Agent, and constitute the
legal, valid and binding obligations of the Purchase Contract
Agent, enforceable against the Purchase Contract Agent in
accordance with its terms, except to the extent that enforcement
thereof may be limited by the Bankruptcy Exceptions.
(iii) the execution, delivery and performance of the
Purchase Contract Agreement and the Pledge Agreement by the
Purchase Contract Agent does not conflict with or constitute a
breach of the charter or by-laws of the Purchase Contract Agent.
(iv)No consent, approval or authorization of, or
registration with or notice to, any New York or federal
governmental authority or agency is required for the execution,
delivery or performance by the Purchase Contract Agent of the
Purchase Contract Agreement and the Pledge Agreement.
(6) The signed opinion of Debevoise & Xxxxxxxx, special tax
counsel to the Offerors, 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 "Certain
Federal
38
Income Tax Considerations", 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.
(7) The favorable opinion, dated as of the Closing Time, of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the
Underwriters, in form and substance satisfactory to the Underwriters,
with respect to the issuance and sale of the Securities, and other
related matters as the Underwriters may reasonably require, and the
Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(8) The favorable opinions, dated as of the Closing Time, of (i)
Leboeuf, Lamb, Xxxxxx & XxxXxx LLP, special Connecticut counsel for
the Company, (ii) Leboeuf, Lamb, Xxxxxx & XxxXxx LLP, special
Pennsylvania counsel for the Company, (iii) Dickinson, Wright, Moon,
Van Dusen & Xxxxxxx, special Michigan counsel for the Company, and
(iv) Shook, Hardy & Bacon, special Kansas counsel to the Company, in
form and substance satisfactory to the Underwriters, with respect to
the applicability of the "bucket shop" laws of such states.
(c) Between the date of this Agreement and prior to the Closing Time,
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, the Underwriters 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, and dated as of the Closing
Time, to the effect that (i) there has been no material adverse change in
the condition, financial or otherwise, or
39
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, (iii) the Company and the Trust have complied with all
agreements and satisfied all conditions on their part to be performed or
satisfied at or prior to the Closing Time, 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 threatened by
the Commission.
(e) At the time of the execution of this Agreement, the Underwriters
shall have received from Coopers & Xxxxxxx LLP a letter dated such date in
form and substance satisfactory to the Underwriters, to the effect set
forth below and as to such other matters as the Underwriters may reasonably
request, that:
(i) They have audited the consolidated balance sheets of
Protective Life Corporation and subsidiaries (the "Company") as of December
31, 1996 and 1995, and the related consolidated statements of income,
stockholders' equity, and cash flows for each of the three years in the
period ended December 31, 1996, and the related financial statement
schedules, included in or incorporated by reference in the Company's Annual
Report on Form 10-K for the year ended December 31, 1996, and incorporated
by reference in the registration statement (file No. 333-30905) on Form S-3
filed by Protective Life Corporation, PLC Capital Trust II, PLC Capital
Trust III, and PLC Capital Trust IV under the Securities Act of 1933, as
amended (the "Act"); their report with respect thereto is also incorporated
by reference in such registration statement. Such registration statement,
including information incorporated by reference and the prospectus dated
July 18, 1997 and the prospectus supplement dated November 20, 1997, are
referred to in such letter as the "Registration Statement." In connection
with the Registration Statement:
1. They are independent certified public accountants with
respect to the Company within the meaning of the Act and the applicable
published rules and regulations thereunder.
40
2. In their opinion, the consolidated financial statements and
financial statement schedules of the Company audited by them and
incorporated by reference in the Registration Statement comply as to form
in all material respects with the applicable accounting requirements of the
Act and the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and the related published rules and regulations.
3. They have not audited any financial statements of the
Company as of any date or for any period subsequent to December 31, 1996;
although they have conducted an audit for the year ended December 31, 1996,
the purpose (and therefore the scope) of the audit was to enable them to
express their opinion on the consolidated financial statements as of
December 31, 1996, and for the year then ended, but not on the consolidated
financial statements for any interim period within that year. Therefore,
they are unable to and do not express any opinion on the unaudited
condensed consolidated balance sheet as of March 31, 1997, June 30, 1997,
and September 30, 1997 and the unaudited consolidated condensed statements
of income, stockholders' equity and cash flows for the three-month periods
ended March 31, 1997 and 1996, the three-month and six-month periods ended
June 30, 1997 and 1996, and the three-month and nine-month periods ended
September 30, 1997 and 1996, included in the Company's quarterly reports on
Form 10-Q for the quarters ended March 31, 1997, June 30, 1997, and
September 30, 1997 incorporated by reference in the Registration Statement,
or on the financial position, results of operations or cash flows as of any
date or for any period subsequent to December 31, 1996.
4. For purpose of such letter, they have read the 1997 minutes
of the meetings of the Stockholders, the Board of Directors of the Company
and its subsidiaries as set forth in the minute books at November ___,
1997, officials of the Company having advised them that the minutes for all
such meetings through that date were set forth therein; they have carried
out other procedures to November ____, 1997 as follows (their work did not
extend to the period from November ____, 1997 to November ____, 1997,
inclusive):
a. With respect to the three-month, six-month, and
nine-month periods ended March 31, 1997 and
41
1996, June 30, 1997 and 1996, and September 30, 1997 and 1996,
respectively, they have:
(i) Performed the procedures (completed on April 23, 1997)
specified by the American Institute of Certified Public Accountants
for a review of interim financial information as described in SAS No.
71, "Interim Financial Information," on the unaudited condensed
consolidated balance sheet as of March 31, 1997 and unaudited
condensed consolidated statements of income, stockholders' equity, and
cash flows for the three-month periods ended March 31, 1997 and 1996,
included in the Company's quarterly report on Form 10-Q for the
quarter ended March 31, 1997 and incorporated by reference in the
Registration Statements.
(ii) Performed the procedures (completed on July 23, 1997)
specified by the American Institute of Certified Public Accountants
for a review of interim financial information as described in SAS No.
71, "Interim Financial Information," on the unaudited condensed
consolidated balance sheet as of June 30, 1997 and unaudited condensed
consolidated statements of income, stockholders' equity, and cash
flows for the three-month and six-month periods ended June 30, 1997
and 1996, included in the Company's quarterly report on Form 10-Q for
the quarter ended June 30, 1997 and incorporated by reference in the
Registration Statements.
(iii) Performed the procedures (completed on October 23,
1997) specified by the American Institute of Certified Public
Accountants for a review of interim financial information as described
in SAS No. 71, "Interim Financial Information," on the unaudited
condensed consolidated balance sheet as of September 30, 1997 and
unaudited condensed consolidated statements of income, stockholders'
equity, and cash flows for the three-month and nine-month periods
ended September 30, 1997 and 1996, included in the Company's quarterly
report on Form 10-Q for the quarter ended September 30, 1997 and
incorporated by reference in the Registration Statements.
(iv) Inquired of certain officials of the Company who have
responsibility for financial and accounting matters whether the
unaudited condensed con-
42
solidated financial statements referred to in 4.a.(i), 4.a.(ii), and
4.a.(iii) comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and the related
published rules and regulations.
The foregoing procedures do not constitute an audit made in accordance
with generally accepted auditing standards. Also, they would not
necessarily reveal matters of significance with respect to the comments in
the following paragraph. Accordingly, they make no representations
regarding the sufficiency of the foregoing procedures for your purposes.
5. Nothing came to their attention as a result of the foregoing
procedures, however, that caused them to believe that the unaudited
condensed consolidated financial statements described in 4.a.(i), 4.a.(ii)
and 4.a.(iii) do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the related published
rules and regulations.
6. Company officials have advised them that no consolidated
financial statements as of any date or for any period subsequent to
September 30, 1997 are available, accordingly, the procedures carried out
by them with respect to financial statement items after September 30, 1997
have been, of necessity, even more limited than those with respect to the
periods referred to in paragraph 4. They have made inquiries of certain
officials of the Company who have responsibility for financial and
accounting matters as to whether (a) at November ___, 1997, there was any
change in the common stock, any increase in short-term or long-term debt,
or any decreases in consolidated net assets or stockholders' equity (other
than the effect on stockholders' equity of unrealized gains and losses on
investments or dividends in the interim period) as compared with the
amounts shown on the September 30, 1997 unaudited condensed consolidated
balance sheet incorporated by reference in the Registration Statement or
(b) for the period from October 1, 1997 to November ____, 1997, there were
any decreases as compared with the corresponding period in the preceding
year, in consolidating operating revenues or in the total or per-share
amounts of income before extraordinary items, or net of income. On the
basis of these inquiries and our reading of the minutes as described in 4.,
nothing came to out attention that caused us to believe that there were any
43
such changes, increases, or decreases, except in all instances for changes,
increases, or decreases that the Registration Statement discloses have
occurred or may occur.
7. For purposes of such letter, they have also read selected
items from the Registration Statement and incorporated documents and have
performed the procedures set forth in such letter, which were applied as
indicated in such letter, with respect to such items.
(f) At the Closing Time, the Underwriters shall have received from
Coopers & Xxxxxxx LLP a letter, dated as of the Closing Time, to the effect
that they reaffirm the statements made in the letter furnished pursuant to
subsection (e) of this Section, except that the specified date referred to
shall be a date not more than five days prior to the Closing Time.
(g) At the Closing Time, and at 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 statement or statements of either of the
Offerors, the performance of the of the covenants of the Offerors, or the
fulfillment of any of the conditions here contained.
[(h) At the Closing Time, (i) the Securities shall be rated in one of
the four highest rating categories for preferred stock ("Investment Grade")
by any nationally recognized statistical rating agency, and the Offerors
shall have delivered to the Underwriters a letter, dated the Closing Time,
from such nationally recognized statistical rating agency, or other
evidence satisfactory to the Underwriters, confirming that the Securities
have Investment Grade ratings, (ii) there shall not have occurred any
decrease in the rating assigned to the Securities or any other securities
of the Company or of the financial condition of the Company by any
"nationally recognized statistical rating organization," as defined for
purposes of Rule 436(g)(2) under the 1933 Act Regulations, and (iii) no
downgrading shall have occurred in the AA (Excellent) claims-paying ability
rating of Protective Life Insurance assigned by S & P, the A+ (Superior)
financial strength rating assigned to Protective Life Insurance by A.M.
Best Company,Inc. or the
44
A1 insurance financial strength rating assigned to Protective Life
Insurance by Xxxxx'x Investors Service and (iv) no such organization shall
have publicly announced that it has under surveillance or review its rating
of the Securities or any other securities of the Company or of the
financial condition or claims-paying ability of the Company.]
(i) At the Closing Time, the Income PRIDES and the Shares shall have
been approved for listing on the New York Stock Exchange upon notice of
issuance.
(j) In the event that the Underwriters exercise their option provided
in Section 2(b) hereof to purchase all or any portion of the Option
Securities, the representations and warranties of the Offerors contained
herein and the statements in any certificates furnished by the Offerors
hereunder shall be true and correct as of, and as if made on, each Date of
Delivery, and at the relevant Date of Delivery, the Underwriters shall have
received:
(1) A certificate, dated such Date of Delivery, of the President
or a Vice-President of the Company and the Chief Financial Officer or
Chief Accounting Officer of the Company and a certificate of a Regular
Trustee of the Trust confirming that the certificate delivered at the
Closing Time pursuant to Section 5(d) hereof is true and correct as
of, and as if made on, such Date of Delivery.
(2) The favorable opinion of Xxxxxxx X. Xxxx, Esq., Senior Vice
President, Secretary and General Counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, dated such
Date of Delivery, relating to the Option Securities and otherwise to
the same effect as the opinion required by Section 5(b)(1) hereof.
(3) The favorable opinions of Debevoise & Xxxxxxxx, special
counsel and special tax counsel for the Offerors, in form and
substance satisfactory to counsel for the Underwriters, dated such
Date of Delivery, relating to the Option Securities and otherwise to
the same effect as the opinion required by Sections 5(b)(2) and
5(b)(6) hereof.
(4) The favorable opinion of Xxxxxxxx, Xxxxxx & Finger, special
Delaware counsel for the Offerors, in
45
form and substance satisfactory to counsel for the Underwriters, dated
such Date of Delivery, relating to the Option Securities and otherwise
to the same effect as the opinion required by Section 5(b)(3) hereof.
(5) The favorable opinion of Xxxxxxxx, Xxxxxx & Finger, counsel
to Wilmington Trust Company, in form and substance satisfactory to
counsel for the Underwriters, dated such Date of Delivery, relating to
the Option Securities and otherwise to the same effect as the opinion
required by Section 5(b)(4) hereof.
(6) The favorable opinion of Xxxxx, Xxxxxx & Xxxxxx, counsel to
The Bank of New York, as Purchase Contract Agent, in form and
substance satisfactory to counsel for the Underwriters, dated such
Date of Delivery, relating to the Option Securities and otherwise to
the same effect as the opinion required by Section 5(b)(5) hereof.
(7) The favorable opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP, counsel for the Underwriters, dated such Date of Delivery,
relating to the Option Securities and otherwise to the same effect as
the opinion required by Section 5(b)(7) hereof.
(8) A letter from Coopers & Xxxxxxx LLP in form and substance
satisfactory to the Underwriters and dated such Date of Delivery,
substantially the same in form and substance as the letter furnished
to the Underwriters pursuant to Section 5(f) hereof, except that the
"specified date" in the letter furnished pursuant to this Section
shall be a date not more than five days prior to such Date of
Delivery.
(9) At the Date of Delivery, (i) the Securities shall be rated
in one of the four highest rating categories for preferred stock
("Investment Grade") by any nationally recognized statistical rating
agency, and the Offerors shall have delivered to the Underwriters a
letter, dated the Closing Time, from such nationally recognized
statistical rating agency, or other evidence satisfactory to the
Underwriters, confirming that the Securities have Investment Grade
ratings, (ii) there shall not have occurred any decrease in the rating
assigned to the Securities or any other securities of the Company or
of the financial condition of the Compa-
46
ny by any "nationally recognized statistical rating organization," as
defined for purposes of Rule 436(g)(2) under the 1933 Act Regulations,
and (iii) no downgrading shall have occurred in the AA (Excellent)
claims-paying ability rating of Protective Life Insurance assigned by
S & P, the A+ (Superior) financial strength rating assigned to
Protective Life Insurance by A.M. Best Company,Inc. or the A1
insurance financial strength rating assigned to Protective Life
Insurance by Xxxxx'x Investors Service and (iv) no such organization
shall have publicly announced that it has under surveillance or review
its rating of the Securities or any other securities of the Company or
of the financial condition or claims-paying ability of the Company.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement, or, in the
case of any condition to the purchase of Option Securities on a Date of
Delivery 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 the
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 and except that Sections 1, 6, 7 and 8
shall survive any such termination and 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 Rule 430A Information
and the Rule 434 Information deemed to be a part thereof, 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
47
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 liabili-
48
ty 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 indemnified 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
49
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
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
50
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 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 (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, or, if Rule 434 is used, the
corresponding location on the Term Sheet, 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
51
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, by notice to the
Company and the Trust, at any time at or prior to the Closing Time (i) if there
has been, since the time of execution of this 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
52
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 may also terminate pursuant to the provisions of Section 5,
with the effect stated in such Section.
(b) If this Agreement is 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 the Closing Time or a Date of Delivery, as the
case may be, to purchase the Securities which it or they are obligated to
purchase under this Agreement and the Pricing Agreement (the "Defaulted
Securities"), Xxxxxxx Xxxxx shall have the right, within 24 hours thereafter, to
make arrangements for one or more of the non-defaulting Underwriters, or any
other underwriters, 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, Xxxxxxx Xxxxx shall not have completed such arrangements
within such 24-hour period, then:
(a) if the number or aggregate principal amount, as the case may be,
of Defaulted Securities does not exceed 10% of the total number or
aggregate principal amount, as the case may be, of Securities, 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
53
(b) if the number or aggregate principal amount, as the case may be,
of Defaulted Securities exceeds 10% of the total number or aggregate
principal amount, as the case may be, of the Securities to be purchased on
such date, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter.
No action taken pursuant to this Section 10 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, or, in the case of a Date of Delivery which is after the Closing
Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Company to sell the relevant Option Securities,
as the case may be, either Xxxxxxx Xxxxx or the Company shall have the right to
postpone the Closing Time or the relevant Date of Delivery, as the case may
be,for a period not exceeding seven days in order to effect any required changes
in the Registration Statement or the Prospectus or in any other documents or
arrangements. As used herein, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 10.
SECTION 11. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Underwriters c/o Merrill Xxxxx at Xxxxxxx
Xxxxx World Headquarters, World Financial Center, Xxxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, (telecopier No. (000) 000-0000) Attention of Xxxxxxx Xxxxxx, with a
copy to Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx, 00000 (telecopier No. (000) 000-0000) Attention of Xxxxxxx Xxxxxx,
Esq.; notices to the Company and the Trust shall be directed to them at
Protective Life Corporation, 0000 Xxxxxxx 000 Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000
(telecopier no.: (000) 000-0000), attention of General Counsel, with a copy to
Debevoise & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (telecopier
no.: (000) 000-0000), Attention of Xxxxxxx Xxxxx, Esq.
SECTION 12. PARTIES. This Agreement and the Pricing Agreement shall each
inure to the benefit of and be binding upon the Offerors and the Underwriters
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
54
and their respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 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 parties hereto and thereto and their respective successors and
legal representatives, and said controlling persons and officers and directors
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. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME UNLESS
OTHERWISE INDICATED.
SECTION 14. EFFECT OF HEADINGS. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
55
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, shall become a binding agreement
among the Company, the Trust and the several Underwriters in accordance with its
terms.
Very truly yours,
PROTECTIVE LIFE CORPORATION
By:
------------------------
Name:
Title:
PLC CAPITAL TRUST II
By:
------------------------
Name:
Title: Regular Trustee
By:
------------------------
Name:
Title: Regular Trustee
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXXX, SACHS & CO
XXX-XXXX, XXXXXX INC.
THE XXXXXXXX-XXXXXXXX COMPANY, LLC
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
---------------------
Authorized Signatory:
EXHIBIT A
PROTECTIVE LIFE CORPORATION
(A DELAWARE CORPORATION)
PLC CAPITAL TRUST II
(A DELAWARE BUSINESS TRUST)
2,000,000 FELINE PRIDES
(STATED AMOUNT OF $50 PER SECURITY)
EACH CONSISTING OF
A PURCHASE CONTRACT OF PROTECTIVE LIFE CORPORATION
REQUIRING THE PURCHASE ON FEBRUARY 16, 2001
(OR EARLIER) OF CERTAIN SHARES OF COMMON STOCK
OF PROTECTIVE LIFE CORPORATION
AND
A % TRUST ORIGINATED PREFERRED SECURITY
OF PLC CAPITAL TRUST II
PRICING AGREEMENT
November , 1997
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED, as representative of the
several Underwriters named in the within
mentioned Underwriting Agreement
Xxxxxxx Xxxxx World Headquarters
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement, dated November ,
1997 (the "Underwriting Agreement"), relating to the purchase by the several
Underwriters named in Schedule A thereto of the above FELINE PRIDES (the
"Securities") of Protective Life
_____________________
"FELINE PRIDES" is a service xxxx of Xxxxxxx Xxxxx & Co. Inc.
Corporation (the "Company"), and PLC Capital Trust II (the "Trust").
Pursuant to Section 2 of the Underwriting Agreement, the Company and
the Trust agree with each Underwriter as follows:
1. The initial public offering price per security for the Securities,
determined as provided in said Section 2, shall be $50.00.
2. The purchase price per security for the Securities to be paid by
the several Underwriters shall be $ , being an amount equal to the
initial public offering price set forth above less $ per security.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriters and the Company and the Trust in accordance with its
terms.
Very truly yours,
PROTECTIVE LIFE CORPORATION
By:
------------------------
Name:
Title:
PLC CAPITAL TRUST II
By:
------------------------
Name:
Title: Regular Trustee
By:
------------------------
Name:
Title: Regular Trustee
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXXX, SACHS & CO
XXX-XXXX, XXXXXX INC.
THE XXXXXXXX-XXXXXXXX COMPANY, LLC
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
----------------------
Authorized Signatory:
