EXHIBIT 1.1
PROTECTIVE LIFE CORPORATION
DEBT SECURITIES
UNDERWRITING AGREEMENT
March 20, 2000
Tothe Representatives of the several Underwriters to be named in the respective
Pricing Agreements hereinafter described.
Dear Sirs or Madams:
From time to time Protective Life Corporation, a Delaware
corporation (the "Company"), proposes to enter into one or more Pricing
Agreements in the form of Annex I hereto, with such additions and deletions as
the parties thereto may determine, and, subject to the terms and conditions
stated herein and therein, to issue and sell to the firms named in Schedule I to
the applicable Pricing Agreement (such firms constituting the "Underwriters"
with respect to such Pricing Agreement and the securities specified therein)
certain of its debt securities (the "Securities") specified in Schedule II to
such Pricing Agreement (with respect to such Pricing Agreement, the "Designated
Securities").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the indenture (such indenture, including any supplement
thereto relating to the Designated Securities, the "Indenture") identified in
such Pricing Agreement.
1. Particular sales of Designated Securities may be made from
time to time to the Underwriters of such Designated Securities, for whom the
firms designated as representatives of the Underwriters of such Designated
Securities in the Pricing Agreement relating thereto will act as representatives
(the "Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to Underwriters who act
without any firm being designated as their representative. This Underwriting
Agreement shall not be construed as an obligation of the Company to sell any of
the Securities or as an obligation of any of the Underwriters to purchase the
Securities. The obligation of the Company to issue and sell any of the
Securities and the obligation of any of the Underwriters to purchase any of the
Securities shall be evidenced by the Pricing Agreement with respect to the
Designated Securities specified therein. Each Pricing Agreement shall specify
the aggregate principal amount of such Designated Securities, the initial public
offering price of such Designated Securities, the purchase price to the
Underwriters of such Designated Securities, the names of the Underwriters of
such Designated Securities, the names of the
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Representatives of such Underwriters and the principal amount of such Designated
Securities to be purchased by each Underwriter and shall set forth the date,
time and manner of delivery of such Designated Securities and payment therefor.
The Pricing Agreement shall also specify (to the extent not set forth in the
Indenture and the registration statement and prospectus with respect thereto)
the terms of such Designated Securities. A Pricing Agreement shall be in the
form of an executed writing (which may be in counterparts), and may be evidenced
by an exchange of telegraphic communications or any other rapid transmission
device designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (File No.
333-80769), as amended by Amendment No. 1 thereto, in respect
of the Securities, Common Stock and Preferred Stock of the
Company and the Preferred Securities of PLC Capital Trust III
and PLC Capital Trust IV, limited liability companies formed
under the laws of the State of Delaware, (collectively, the
"Registered Securities") has been filed with the Securities
and Exchange Commission (the "Commission") and, as so amended,
has been declared effective by the Commission; such
registration statement and any post-effective amendment
thereto (including any registration statement increasing the
size of the offering (a "Rule 462(b) Registration Statement")
filed pursuant to Rule 462(b) of the Act, as defined below),
each in the form heretofore delivered or to be delivered to
the Representatives and, excluding exhibits to such
registration statement, but including all documents
incorporated by reference in the prospectus contained therein,
to the Representatives for delivery to each of the other
Underwriters, have been declared effective by the Commission
in such form; no other document with respect to such
registration statement or document incorporated by reference
therein has heretofore been filed or transmitted for filing
with the Commission; and no stop order suspending the
effectiveness of such registration statement has been issued
and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus,
together with the base prospectus included in such
registration statement, being hereinafter called a
"Preliminary Prospectus"; the various parts of such
registration statement (including any Rule 462(b) Registration
Statement) including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in the
registration statement at the time such part of the
registration statement becomes effective but excluding any
Forms T-1 and, if applicable, including the information
contained in the form of final prospectus filed with the
Commission pursuant to Rule 424(b) under the Act in accordance
with Section 5(a) hereof and deemed by virtue of Rule 430A or
434(d) under the Act to be a part of such registration
statement at effectiveness, each as amended at the time such
part of the registration statement become effective, being
hereinafter called the "Registration Statement"; the
prospectus (including, if applicable, any prospectus
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supplement) relating to the Registered Securities, in the form
in which it has most recently been filed, or transmitted for
filing, with the Commission on or prior to the date of this
Agreement, being hereinafter called the "Prospectus",
provided, that if the Underwriters elect to rely on Rule 434
of the Securities Act of 1933, as amended (the "Act"), 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 on Rule 434, and all references herein to
the date of the Prospectus shall mean the date of the Term
Sheet; any reference herein to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed with the Commission after the date
of such Preliminary Prospectus or Prospectus, as the case may
be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference in such
Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment to the Registration Statement shall
be deemed to refer to and include any annual report of the
Company filed pursuant to Section 13(a) or 15(d) of the
Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the
Registration Statement; and any reference to the Prospectus as
amended or supplemented shall be deemed to refer to the
Prospectus as amended or supplemented in relation to the
applicable Designated Securities in the form in which it is
filed with the Commission pursuant to Rule 424(b) under the
Act in accordance with Section 5(a) hereof, including any
documents incorporated by reference therein as of the date of
such filing);
(b) The documents incorporated or deemed to be
incorporated by reference in the Prospectus, when they became
effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such
documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading;
and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or
supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder 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; provided, however,
that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in
conformity with information furnished in
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writing to the Company by an Underwriter of Designated
Securities through the Representatives expressly for use in
the Prospectus as amended or supplemented relating to such
Securities;
(c) The Company met, at the time of effectiveness of
the Registration Statement, and will meet as of the date of
any Pricing Agreement and any Time of Delivery, the
requirements for use of Form S-3 under the Act. The
Registration Statement, as of the applicable effective date,
and the Prospectus, as of the applicable filing date, the date
hereof, the date of any Pricing Agreement and any Time of
Delivery, conform and will conform, and any further amendments
or supplements to the Registration Statement or the Prospectus
will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the rules and regulations of the
Commission thereunder and do not and will not, as of the
applicable effective date as to the Registration Statement and
any amendment thereto and as of the applicable filing date as
to the Prospectus and any amendment or supplement thereto as
of the date hereof, the date of any Pricing Agreement and as
of any Time of Delivery, 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 (i)
in the case of the Registration Statement, not misleading and
(ii) in the case of the Prospectus, in light of the
circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the
Company by an Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus as amended
or supplemented relating to such Securities;
Each preliminary prospectus and 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.
(d) 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
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information shown therein and have been compiled on a basis
consistent with that of the audited financial statements
included in the Registration Statement. Since the respective
dates as of which information is given in the Registration
Statement and the Prospectus, there has not been (i) any
material change in the capital stock or any increase in the
long-term debt of the Company or any of its subsidiaries in
excess of $9 million (excluding the Synthetic Lease which the
Company has entered into regarding the expansion to its
headquarters), (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 $9 million, in
each case otherwise than as set forth or contemplated in the
Prospectus;
(e) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the Prospectus and has been duly
qualified as a foreign corporation for the transaction of
business 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;
(f) Each of Protective Life Insurance Company
("Protective Life"), United Dental Care, Inc. ("UDC") and West
Coast Life Insurance Company ("West Coast"), (each a "Material
Subsidiary" and, collectively, the "Material Subsidiaries")
has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its
jurisdiction of incorporation, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the Prospectus, and has been duly
qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, in
any case where it could be reasonably expected that such
failure to be so qualified would have a material adverse
effect on the business, financial position or results of the
Company and its subsidiaries considered as a whole;
(g) Each of Protective Life and West Coast Life is
duly organized and licensed as an insurance company and UDC is
otherwise licensed as required in its state of incorporation
and each Material Subsidiary is duly licensed or authorized as
an insurer or otherwise in each other jurisdiction where it is
required to be so licensed or authorized 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 have
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a material adverse effort 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 any
Material Subsidiary has received any notification from any
insurance or other regulatory authority to the effect that any
additional authorization, approval, order, consent, license,
certificate, permit, registration or qualification from such
insurance or other regulatory authority is needed to be
obtained by either of the Company or any Material Subsidiary
in any case where it could 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;
(h) 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
descriptions thereof contained in the Prospectus; and all of
the issued shares of capital stock of each of the Material
Subsidiaries have been duly and validly authorized and issued,
are fully paid and non-assessable and (except for directors'
qualifying shares) are owned directly or indirectly by the
Company, free and clear of any perfected security interests
and, to the Company's best knowledge, any other security
interests, claims, liens, or encumbrances;
(i) This Agreement has been duly authorized, executed
and delivered by the Company and constitutes the legal, valid
and binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting
creditors' rights and to general equity principles and except
that no representation or warranty is made with respect to the
enforceability of Section 8 hereof. The Securities have been
duly authorized, and, when Designated Securities are issued
and delivered pursuant to this Agreement and the Pricing
Agreement with respect to such Designated Securities, such
Designated Securities will have been duly executed,
authenticated, issued and delivered and will constitute valid
and legally binding obligations of the Company entitled to the
benefits provided by the Indenture, which will be
substantially in the form filed as an exhibit to the
Registration Statement; the Indenture has been duly authorized
and duly qualified under the Trust Indenture Act and, at the
Time of Delivery for such Designated Securities (as defined in
Section 4 hereof), the Indenture will constitute a valid and
legally binding instrument, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general
equity principles; and the Indenture conforms, and the
Designated Securities will conform,
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to the descriptions thereof contained in the Prospectus as
amended or supplemented with respect to such Designated
Securities;
(j) The issue and sale of the Securities and the
compliance by the Company with all of the provisions of the
Securities, the Indenture, this Agreement and any Pricing
Agreement, and the consummation of the transactions herein and
therein contemplated will not (1) conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to
which the Company or any Material Subsidiary is a party or by
which the Company or any Material Subsidiary is bound or to
which any of the property or assets of the Company or any
Material Subsidiary is subject, except, in all such cases, for
such conflicts, breaches, violations or defaults as would not
have a material adverse effect on the financial condition or
results of operations of the Company and the Material
Subsidiaries taken as a whole or would not affect the validity
of or otherwise have a material adverse effect on the issuance
or sale of the Designated Securities or (2) result in any
violation of the provisions of (A) the Certificate of
Incorporation or By-laws of the Company or any Material
Subsidiary or (B) any statute or any order, rule or regulation
of any court or insurance regulatory authority or other
governmental agency or body having jurisdiction over the
Company or any Material Subsidiary or any of their properties;
provided, however that in the case of clause (B) of this
paragraph 2(j), this representation and warranty shall not
extend to such violations as would not have a material adverse
effect on the financial condition or results of operations of
the Company and the Material Subsidiaries taken as a whole or
would not affect the validity of or otherwise have a material
adverse effect on the issuance or sale of the Designated
Securities; provided further, that insofar as this
representation and warranty relates to the performance by the
Company of its obligations under this Agreement, the Pricing
Agreement or the Indenture relating to the Designated
Securities, such performance is subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles,
and provided further that no representation or warranty is
made with respect to the enforceability of Section 8 hereof;
and no consent, approval, authorization, order, registration
or qualification of or with any such court or insurance
regulatory authority or other governmental agency or body
having jurisdiction over the Company or any Material
Subsidiary is required for the issue and sale of the
Securities or the consummation by the Company of the
transactions contemplated by this Agreement or any Pricing
Agreement or the Indenture, except such as have been, or will
have been prior to the Time of Delivery, obtained under the
Act and the Trust Indenture Act and such consents, approvals,
authorizations, orders, registrations or qualifications as may
be required under state securities 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, will not have a material adverse
effect on the financial
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condition or results of operations of the Company and the
Material Subsidiaries taken as a whole or would not affect the
validity of or otherwise have a material adverse effect on the
issuance or sale of the Designated Securities;
(k) Other than as set forth or contemplated in the
Prospectus, there are no actions, suits or proceedings before
or by any government, governmental instrumentality or court,
domestic or foreign, now pending or to the knowledge of the
Company 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 which, if
determined adversely to the Company or any of its
subsidiaries, would reasonably be expected to have,
individually or in the aggregate, a material adverse effect on
the consolidated financial position, stockholders' equity (if
applicable), total surplus (if applicable) or results of
operations of the Company and its subsidiaries taken as a
whole;
(l) The Company is not and, upon the issuance or sale
of the Securities and the application of the net proceeds
therefrom, 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
"Investment Company Act");
(m) The accountants who certified certain financial
statements and supporting schedules of the Company and its
subsidiaries included or incorporated by reference in the
Registration Statement and Prospectus, are independent public
accountants as required by the Act and the rules and
regulations of the Commission thereunder;
(n) The statements set forth in the Prospectus under
the captions "Description of Debt Securities of Protective"
and "Description of the Senior Notes", insofar as they purport
to constitute a summary of the terms of the Securities, and
insofar as they purport to describe the provisions of the laws
and documents referred to therein, are accurate, complete and
fair;
(o) Neither the Company nor any of its subsidiaries
is in violation of its Certificate of Incorporation or By-laws
or other charter documents or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to
which it is a party or by which it or any of its properties
may be bound which would reasonably be expected to have a
material adverse effect on the financial position or results
of the Company and its subsidiaries taken as a whole or an
adverse effect on the offering, servicing or payment of the
debt evidenced by the Designated Securities;
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(p) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in any rating of
the Company or Protective Life Insurance or the rating accorded any of the
Company's debt securities by Xxxxx'x Investors Service, Inc., Standard & Poor's
Corporation, A.M. Best Company, Inc. or Duff & Xxxxxx Inc. and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, any such rating.
Any certificate signed by any director or officer of the
Company and delivered to the Representatives or to counsel for the
Representatives in connection with a sale of any Designated Security to the
Underwriters shall be deemed a representation and warranty by the Company to the
Underwriters as to the matters covered thereby on the date of such certificate.
3. Upon the execution of the Pricing Agreement applicable to
any Designated Securities and authorization by the Representatives of the
release of such Designated Securities, the several Underwriters propose to offer
such Designated Securities for sale upon the terms and conditions set forth in
the Prospectus as amended or supplemented.
4. Unless otherwise specified in the applicable Pricing
Agreement, global certificates for Designated Securities to be purchased by each
Underwriter pursuant to such Pricing Agreement, registered in the name Cede &
Co., shall be delivered by or on behalf of the Company to The Depository Trust
Company, which shall release such Designated Securities to the accounts of the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by federal funds
wire transfer of immediately available funds to a bank account specified by the
Company and described in Schedule II to such Pricing Agreement, all at the place
and time and date specified in such Pricing Agreement or at such other place and
time and date as the Representatives and the Company may agree upon in writing,
such time and date being herein called the "Time of Delivery" for such
Securities.
5. The Company agrees with each of the Underwriters of
any Designated Securities:
(a) To prepare the Prospectus as amended and
supplemented in relation to the applicable Designated
Securities in a form approved by the Representatives (which
approval will not be unreasonably withheld) and to file such
Prospectus pursuant to Rule 424(b) under the Act not later
than such time as required by Rule 424(b) and to comply with
the requirements of Rule 430A and Rule 434 under the Act, if
and as applicable; to make no further amendment or any
supplement to the Registration Statement or Prospectus as
amended or supplemented after the date of the Pricing
Agreement relating to such Securities and prior to the Time of
Delivery for such Securities which shall be reasonably
disapproved by the Representatives for such Securities
promptly after reasonable notice thereof; to advise the
Representatives promptly of any such amendment or supplement
after such Time of Delivery and
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furnish the Representatives with copies thereof; to comply
with the Act and the Exchange Act so as to permit the
completion of the distribution of the Securities; and to file
promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act for so long as the delivery of a prospectus
is required in connection with the offering or sale of such
Securities, and during such same period to advise the
Representatives, promptly after it receives notice thereof, of
the time when any amendment to the Registration Statement has
been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed with the
Commission, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any
prospectus relating to the Securities, of the suspension of
the qualification of such Securities for offering or sale in
any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any such
stop order or of any such order preventing or suspending the
use of any prospectus relating to the Securities or suspending
any such qualification, to use promptly its best efforts to
obtain its withdrawal;
(b) Promptly from time to time to take such action as
the Representatives may reasonably request to qualify such
Securities for offering and sale under the securities laws of
such United States jurisdictions as the Representatives may
reasonably request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of such Securities, provided that in connection
therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of
process in any jurisdiction and provided further that in
connection therewith the Company shall not be required to
qualify such Designated Securities for offering and sale under
the securities laws of any such jurisdiction for a period in
excess of nine months after the initial time of issue of the
Prospectus as amended or supplemented relating to such
Designated Securities;
(c) To furnish the Underwriters with copies of the
Prospectus as amended or supplemented and the documents
incorporated by reference therein in such quantities as the
Representatives may from time to time reasonably request and,
if the delivery of a prospectus is required at any time in
connection with the offering or sale of the Securities and if
at such time any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary
during such same period to amend or supplement the Prospectus
or to file under the Exchange Act any document incorporated by
reference in the
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Prospectus in order to comply with the Act, the Exchange Act
or the Trust Indenture Act, to notify the Representatives and
upon their request to file such document and to prepare and
furnish without charge to each Underwriter and to any dealer
in securities as many copies as the Representatives may from
time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement
or omission or effect such compliance, provided, however, that
in case any Underwriter is required under the Act to deliver a
prospectus in connection with the offering or sale of the
Designated Securities at any time more than nine months after
the date of the Pricing Agreement relating to the Designated
Securities, the costs of such preparation and furnishing of
such amended or supplemented Prospectus shall be borne by the
Underwriters of such Designated Securities;
(d) To make generally available to its
securityholders as soon as practicable, but in any event not
later than eighteen months after the effective date of the
Registration Statement (as defined in Rule 158(c)), an
earnings statement of the Company and its subsidiaries (which
need not be audited) complying with Section 11(a) of the Act
and the rules and regulations of the Commission thereunder
(including at the option of the Company Rule 158);
(e) During the period beginning from the date of the
Pricing Agreement for such Designated Securities and
continuing to and including the earlier of (i) the termination
of trading restrictions for such Designated Securities, as
notified to the Company by the Representatives and (ii) the
Time of Delivery for such Designated Securities, not to offer,
sell, contract to sell or otherwise dispose of any debt
securities of the Company which mature more than one year
after such Time of Delivery and which are substantially
similar to such Designated Securities, without the prior
written consent of the Representatives;
(f) The Company will notify the Underwriters promptly
of any change in (or withdrawal of) the rating assigned by any
nationally recognized statistical rating organization to any
debt securities of the Company or the public announcement by
any nationally recognized statistical rating organization that
it has under surveillance or review, with possible negative
implications, its rating of any debt securities of the
Company;
(g) The Company will use the net proceeds
received by it from each sale of the Designated Securities
in the manner specified in the Prospectus under "Use of
Proceeds;"
(h) The Company, during the period of 15 days from
the date on which the Designated Securities are purchased by
the Underwriter, will not sell, offer to sell, grant any
option for the sale of, or otherwise dispose of any of the
Designated
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Securities, any security convertible into or exchangeable into
or exercisable for the Designated Securities or any debt
securities substantially similar to the Designated Securities,
without the prior written consent of the Underwriter.
6. The Company covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid the following: (i)
the fees, disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and, subject to the proviso
to Section 5(c), the Prospectus and amendments and supplements thereto and the
mailing and delivering of copies thereof to the Underwriters and dealers; (ii)
the cost of producing and printing or duplicating any Agreement among
Underwriters, this Agreement, any Pricing Agreement, any Indenture, any Blue Sky
and Legal Investment Memoranda and any other documents in connection with the
offering, purchase, sale and delivery of the Securities; (iii) all expenses in
connection with the qualification of the Securities for offering and sale under
state securities laws as provided in Section 5(b) hereof, including the
reasonable fees and disbursements of counsel for the Underwriters in connection
with such qualification and in connection with the Blue Sky and legal investment
surveys; (iv) any fees charged by securities rating services for rating the
Securities; (v) any filing fees incident to any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Securities; (vi) the cost of preparing the Securities; (vii) the cost of
qualifying the Securities with the Depository Trust Company (if applicable);
(viii) the fees and expenses of any Trustee and any agent of any Trustee and the
fees and disbursements of counsel for any Trustee in connection with any
Indenture and the Securities; and (ix) all other costs and expenses incident to
the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, Section 8 and Section 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Securities by them, and
any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated
Securities under the Pricing Agreement relating to such Designated Securities
shall be subject, in the discretion of the Representatives, to the condition
that all representations and warranties and other statements of the Company in
or incorporated by reference in the Pricing Agreement relating to such
Designated Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus as amended or supplemented in
relation to the applicable Designated Securities, including
any Term Sheet, if applicable, shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time
period prescribed for such filing by the rules and regulations
under the Act and in accordance with Section 5(a) hereof; no
stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no
12
proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been
complied with to the Representatives' reasonable satisfaction;
(b) Xxxxx Xxxx LLP, or other counsel for the
Underwriters, shall have furnished to the Representatives such
opinion or opinions, dated the Time of Delivery for such
Designated Securities, with respect to such matters as the
Representatives may reasonably request, and such counsel shall
have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) Xxxxxxx X. Xxxx, Esq., Senior Vice President and
General Counsel of the Company, or any successor having
substantially equivalent responsibilities with the Company,
shall have furnished to the Representatives such counsel's
written opinion, dated each Time of Delivery for such
Designated Securities, respectively, in form and substance
satisfactory to the Representatives, to the effect that:
(i) The Company has been duly incorporated
and is validly existing as a corporation in good
standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own
its properties and conduct its business as described
in the Prospectus as amended or supplemented, and has
been duly qualified as a foreign corporation for the
transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns
or leases properties, or conducts any business, so as
to require such qualification, or is subject to no
material liability or disability by reason of the
failure to be so qualified in any such jurisdiction;
(ii) The Company has an authorized
capitalization as set forth in the Prospectus as
amended or supplemented, and all of the issued shares
of capital stock of the Company have been duly and
validly authorized and issued, are fully paid and
non-assessable and conform in all material respects
to the description thereof in the Prospectus as
amended or supplemented; and all of the issued shares
of capital stock of each of the Material Subsidiaries
have been duly and validly authorized and issued, are
fully paid and non- assessable and (except for
directors' qualifying shares) are owned directly or
indirectly by the Company, free and clear of any
perfected security interests and, to such counsel's
best knowledge, any other security interests, claims,
liens or encumbrances;
(iii) The documents incorporated by
reference in the Registration Statement and the
Prospectus as amended or supplemented (other than the
financial statements and related notes, the financial
statement schedules and other financial and
statistical data included therein as to which such
counsel
13
need express no opinion), when they become effective
or were filed with the Commission, as the case may
be, complied as to form in all material respects with
the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the
Commission thereunder; 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) The issue and sale of the Designated
Securities being delivered at such Time of Delivery
and the compliance by the Company with all of the
provisions of the Designated Securities, the
Indenture, this Agreement, any Pricing Agreement, and
the consummation of the transactions herein and
therein contemplated will not (i) conflict with or
result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument known to such counsel
to which the Company or any Material Subsidiary is a
party or by which the Company or any Material
Subsidiary is bound or to which any of the property
or assets of the Company or any Material Subsidiary
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 Company and
its subsidiaries taken as a whole or would not have a
material adverse effect on the issuance or sale of
the Designated Securities, or (ii) result in any
violation of the provisions of (A) the Certificate of
Incorporation or By-Laws of the Company or any
Material Subsidiary or (B) any statute known to such
counsel to be applicable to the Company or any
Material Subsidiary or any of their respective
properties, or any order, rule or regulation known to
such counsel of any court or insurance regulatory
authority or other governmental agency or body having
jurisdiction over the Company or any Material
Subsidiary or any of their respective properties,
except, with respect to clause (B) of this paragraph
(iii), 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 its subsidiaries taken as a whole or
would not affect the validity of or otherwise have a
material adverse effect on the issuance or sale of
the Designated Securities; and except that for
purposes of this paragraph (iii) 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 Company of its
obligations under the Indenture, this Agreement and
the Pricing Agreement relating to the Designated
Securities is concerned, such counsel need not
express any opinion as to bankruptcy, insolvency,
reorganization,
14
moratorium and similar laws relating to or affecting
creditors' rights generally and as to general
equity principles;
(v) 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 is required for the issue
and sale of the Designated Securities being delivered
at such Time of Delivery or the consummation by the
Company of the transactions contemplated by this
Agreement, any Pricing Agreement, the Designated
Securities or the Indenture, except such as have
been, or will have been prior to each Time of
Delivery, obtained under the Act, the Trust Indenture
Act and such consents, approvals, authorizations,
orders, registrations or qualifications as may be
required under state securities or Blue Sky laws or
insurance securities laws in connection with the
purchase and distribution of the Designated
Securities by the Underwriters, and except those
which, if not obtained, would not have a material
adverse effect on the financial condition or results
of operation of the Company and its subsidiaries
taken as a whole;
(vi) There are no actions, suits or
proceedings before or by any government, governmental
instrumentality or court, domestic or foreign, now
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;
In rendering the opinion required by subsection (c) of
this Section, (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 to
which you consent (which consent shall not be
unreasonably withheld), to the extent specified in
such opinion, upon the opinions (copies of which shall
have been provided to the Representatives) of other
counsel in good standing whom such counsel believes to
be reliable, provided that such counsel shall state
that she believes that both she and the
Representatives are justified in relying on such
opinions and (B) as to matters of fact, upon
certificates of officers and representatives of the
Company and of public officials (copies of which shall
have been provided to the Representatives), provided
that such counsel shall state that she believes that
both she and the Representatives are justified in
relying upon such certificates.
15
Such counsel shall also have stated that, while she has not
herself checked the accuracy or completeness of or otherwise
verified, and is not passing upon and assumes no
responsibility for the accuracy or completeness of, the
statements contained in the Registration Statement or the
Prospectus, in the course of her review and discussion of the
contents of the Registration Statement and Prospectus and any
amendment or supplement thereto with certain officers and
employees of the Company and its independent accountants, but
without independent check or verification, no facts have come
to her attention that would cause her to believe that the
Registration Statement or the Prospectus, as amended or
supplemented, as of the date of the Pricing Agreement with
respect to the Designated Securities and the Time of Delivery
for such Designated Securities (other than the financial
statements and related notes, the financial statement
schedules, other financial and statistical data included
therein and the Statement of Eligibility of the Trustee on
Form T-1 under the Trust Indenture Act as to which she need
express no opinion) 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.
(d) Xxxxx Xxxx, Esq., Senior Associate Counsel of the
Company, or other counsel for the Company satisfactory to the
Representatives, shall have furnished to the Representatives
her written opinion, dated the Time of Delivery for such
Designated Securities, in form and substance satisfactory to
the Representatives, to the effect that:
(i) The Designated Securities have been duly
authorized, issued, executed, authenticated and
delivered and constitute valid and legally binding
obligations of the Company entitled to the benefits
provided by the Indenture, enforceable against the
Company in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws relating
to or affecting creditors' rights generally and to
general equity principles (regardless of whether
considered in a proceeding at law or in equity); and
the Designated Securities conform in all material
respects to the description thereof contained in the
Prospectus as amended or supplemented with respect to
such Designated Securities;
(ii) The Indenture has been duly authorized,
executed and delivered by the Company and, assuming
due authorization, execution and delivery by the
Trustee, the Indenture constitutes a valid and
legally binding instrument enforceable against the
Company in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws relating
to or affecting creditors' rights generally and to
general equity principles (regardless of whether
considered in a proceeding at law or in equity); the
Indenture has been duly qualified under
16
the Trust Indenture Act; and the Indenture conforms
in all material respects to the description thereof
contained in the Prospectus as amended or
supplemented with respect to such Designated
Securities;
(iii) This Agreement and the Pricing
Agreement with respect to the Designated Securities
being delivered at such Time of Delivery have been
duly authorized, executed and delivered by the
Company;
(iv) The Registration Statement and the
Prospectus as amended or supplemented and any further
amendments and supplements thereto made by the
Company prior to such Time of Delivery (other than
the financial statements and related notes, the
financial statement schedules and other financial and
statistical data included therein, as to which such
counsel need express no opinion) comply as to form in
all material respects with the requirements of the
Act and the Trust Indenture Act and the rules and
regulations thereunder;
(v) The Registration Statement has become
effective under the Act; the Prospectus has been
filed pursuant to Rule 424 under the Act, 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 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 Designated
Securities to the Underwriters as provided in the
Agreement, except as may be required by state
securities laws;
(vi) The Company meets the requirements
for use of Form S-3 under the Act;
(vii) The statements contained in the
Prospectus under the caption "Description of Debt
Securities of Protective Life" and the corresponding
sections and any section describing tax matters in
any prospectus supplement relating to the Designated
Securities being delivered at such Time of Delivery,
insofar as such statements constitute summaries of
certain provisions of the documents or U.S. laws
referred to therein, fairly summarize the material
provisions of such documents or U.S. laws; and
(viii) The Company is not, and following
consummation of the transactions contemplated hereby
and the application of the proceeds therefrom in the
manner set forth in the Prospectus will not be, an
"investment company" or under the "control" of an
"investment company" as such terms are defined in the
Investment Company Act.
17
In rendering the foregoing opinion, such counsel may
state that she expresses no opinion as to the laws of
any jurisdiction other than the Federal laws of the
United States, the laws of the State of New York and
The General Corporation Law of the State of Delaware.
Such counsel shall also have stated that, while she
has not herself checked the accuracy or completeness
of or otherwise verified, and is not passing upon and
assumes no responsibility for the accuracy or
completeness of, the statements contained in the
Registration Statement or the Prospectus, except to
the limited extent stated in paragraphs (i), (ii) and
(v) above, in the course of her review and discussion
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 of the Pricing Agreement
with respect to the Designated Securities and the
Time of Delivery for such Designated Securities
(other than the financial statements and related
notes, the financial statement schedules, and other
financial and statistical data included therein, and
except for the Statement of Eligibility of the
Trustee on Form T-1 under the Trust Indenture Act, as
to which such counsel need express no opinion)
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.
(e) On the date of the Pricing Agreement for such
Designated Securities and at the Time of Delivery for such
Designated Securities, the independent accountants of the
Company who have certified the financial statements of the
Company and its subsidiaries included or incorporated by
reference in the Registration Statement shall have furnished
to the Representatives a letter, dated the date of the Pricing
Agreement, and a letter dated such Time of Delivery,
respectively, in customary form reasonably satisfactory to the
Representatives, and with respect to such letter dated such
Time of Delivery, as to such other matters as the
Representatives may reasonably request and in form and
substance satisfactory to the Representatives;
(f) Since the respective dates as of which
information is given in the Prospectus as amended or
supplemented there shall not have been any change in the
capital stock or any increase in the long-term debt of the
Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting
the general affairs, management, financial position,
stockholders' equity, total surplus (if applicable) or results
of operations of the Company and its
18
subsidiaries (in the case of the Insurance Subsidiaries on
either a GAAP or statutory basis), otherwise than as set forth
or contemplated in the Prospectus as amended or supplemented,
the effect of which, in any such case described above, is in
the judgment of the Representatives so material and adverse as
to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Designated Securities
on the terms and in the manner contemplated in the Prospectus
as amended or supplemented;
(g) At the Time of Delivery, (i) the Designated
Securities shall be rated in one of the four highest rating
categories for debt securities ("Investment Grade") by any
nationally recognized statistical rating agency, and the
Company shall have delivered to the Underwriters a letter,
dated as of a recent date satisfactory to the Underwriter,
from such nationally recognized statistical rating agency, or
other evidence satisfactory to the Underwriters, confirming
that the Designated Securities have Investment Grade ratings.
On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred
in any rating of the Company or Protective Life Insurance or
the rating accorded any of the Company's debt securities by
Xxxxx'x Investors Service, Inc., Standard & Poor's
Corporation, A.M. Best Company, Inc. or Duff & Xxxxxx Inc. and
(ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative
implications, any such rating;
(h) On or after the date of the Pricing Agreement
relating to the Designated Securities there shall not have
occurred any of the following: (i) a suspension or material
limitation in trading in securities generally on the New York
Stock Exchange; (ii) a general moratorium on commercial
banking activities in New York declared by either Federal or
New York State authorities; or (iii) the outbreak or
escalation of hostilities involving the United States or the
declaration by the United States of a National Emergency or
war, if the effect of any such event specified in this clause
(iii) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public
offering or the delivery of the Designated Securities on the
terms and in the manner contemplated by the Prospectus as
amended and supplemented;
(i) The Company shall have furnished or caused to be
furnished to the Representatives at the Time of Delivery for
the Designated Securities a certificate or certificates of
officers of the Company satisfactory to the Representatives as
to the accuracy of the representations and warranties of the
Company herein at and as of such Time of Delivery, as to the
performance by the Company of all of its obligations hereunder
to be performed at or prior to such Time of Delivery, as to
the matters set forth in subsections (a) and (f) of this
Section and as to such other matters as the Representatives
may reasonably request; and
19
(j) All proceedings taken by the Company in
connection with the issuance and sale of the Designated
Securities as herein contemplated shall be reasonably
satisfactory in form and substance to the Underwriters and to
counsel to the Underwriters.
8. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the
Securities, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein (i) in the case of
the Registration Statement, not misleading and (ii) in the
case of the Prospectus, as amended or supplemented, or any
other such prospectus, in light of the circumstances in which
they were made, not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating
or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other
prospectus relating to the Securities, or any such amendment
or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter of
Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating
to such Securities and provided, further, that the Company
shall not be liable to any Underwriter under the indemnity
agreement in this subsection (a) with respect to any
Preliminary Prospectus or any preliminary prospectus
supplement to the extent that any such loss, claim, damage or
liability of such Underwriter results from the fact such
Underwriter sold Designated Shares to a person as to whom it
shall be established that there was not sent or given, at or
prior to the written confirmation of such sale, a copy of the
Prospectus (excluding documents incorporated by reference) in
any case where such delivery is required by the 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
(or to the Representatives) and the loss, claim, damage or
liability of such Underwriter results from an untrue statement
or omission of a material fact contained in the Preliminary
Prospectus or any preliminary prospectus supplement
20
which was corrected in the Prospectus (excluding incorporated
documents) (or the Prospectus as amended or supplemented
(excluding incorporated documents)).
(b) Each Underwriter, severally and not jointly, will
indemnify and hold harmless the Company against any losses,
claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the
Securities, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein (i) in the case of
the Registration Statement, not misleading and (ii) in the
case of the Prospectus, as amended or supplemented, or any
such prospectus, in light of the circumstances in which they
were made, not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in
any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as
amended or supplemented and any other prospectus relating to
the Securities, or any such amendment or supplement in
reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse
the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party
under subsection (a) or (b) above of notice of the
commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but
the omission so to notify the indemnifying party shall not
relieve it from any liability hereunder to the extent it is
not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In
case any such action shall be brought against any indemnified
party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying
party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any
legal expenses of other counsel or any other expenses, in each
case
21
subsequently incurred by such indemnified party, in connection
with the defense thereof other than reasonable costs of
investigation. In no event, shall any indemnifying party be
liable for the fees and expenses of more than one counsel (in
addition to local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or
separate but 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 8 (whether or not the indemnified
parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all
liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as
to or an admission of fault, culpability or a failure to act
by or on behalf of any indemnified party.
(d) If the indemnification provided for in this
Section 8 is unavailable to or insufficient to hold harmless
an indemnified party under subsection (a) or (b) above in
respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the
Underwriters of the Designated Securities on the other from
the offering of the Designated Securities to which such loss,
claim, damage or liability (or action in respect thereof)
relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice
required under subsection (c) above, then each indemnifying
party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters of
the Designated Securities on the other in connection with the
statements or omissions which resulted in such losses, claims,
damages or liabilities (or actions in respect thereof), as
well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and
such Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from such offering
(before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by
such Underwriters. The relative fault shall be determined by
reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to
information supplied by the Company on the one hand or such
Underwriters on the other and the
22
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this subsection
(d) 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
subsection (d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above
in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection
(d), no Underwriter shall be required to contribute any amount
in excess of the amount by which the total price at which the
applicable Designated Securities underwritten by it and
distributed to the public were offered to the public exceeds
the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters of
Designated Securities in this subsection (d) to contribute are
several in proportion to their respective underwriting
obligations with respect to such Securities and not joint.
(e) The obligations of the Company under this Section
8 shall be in addition to any liability which the Company may
otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section 8 shall be in addition
to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to
each person, if any, who controls the Company within the
meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Designated Securities which it has agreed to
purchase under the Pricing Agreement relating to such
Designated Securities, the Representatives may in their
discretion arrange for themselves or another party or other
parties to purchase such Designated Securities on the terms
contained herein. If within thirty-six hours after such
default by any Underwriter the Representatives do not arrange
for the purchase of such Designated Securities, then the
Company shall be entitled to a further period of thirty- six
hours within which to procure another party or other parties
reasonably satisfactory to the Representatives to purchase
such Designated Securities on such terms. In the event that,
within the respective prescribed period, the Representatives
notify the Company that they have so arranged for the purchase
of such Designated Securities, or the Company notifies the
Representatives that it has so arranged for the
23
purchase of such Designated Securities, the Representatives or
the Company shall have the right to postpone the Time of
Delivery for such Designated Securities for a period of not
more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the
Prospectus as amended or supplemented, or in any other
documents or arrangements, and the Company agrees to file
promptly any amendments or supplements to the Registration
Statement or the Prospectus which in the opinion of the
Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if
such person had originally been a party to the Pricing
Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for
the purchase of the Designated Securities of a defaulting
Underwriter or Underwriters by the Representatives and the
Company as provided in subsection (a) above, the aggregate
principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate
principal amount of the Designated Securities, then the
Company shall have the right to require each non-defaulting
Underwriter to purchase the principal amount of Designated
Securities which such Underwriter agreed to purchase under the
Pricing Agreement relating to such Designated Securities and,
in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the principal amount of
Designated Securities which such Underwriter agreed to
purchase under such Pricing Agreement) of the Designated
Securities of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein
shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for
the purchase of the Designated Securities of a defaulting
Underwriter or Underwriters by the Representatives and the
Company as provided in subsection (a) above, the aggregate
principal amount of Designated Securities which remains
unpurchased exceeds one- eleventh of the aggregate principal
amount of the Designated Securities, as referred to in
subsection (b) above, or if the Company shall not exercise the
right described in subsection (b) above to require
non-defaulting Underwriters to purchase Designated Securities
of a defaulting Underwriter or Underwriters, then the Pricing
Agreement relating to such Designated Securities shall
thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the
expenses to be borne by the Company and the Underwriters as
provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability
for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect,
24
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company, or any officer or director or controlling person of
the Company, and shall survive delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to
Section 9 hereof, the Company shall not then be under any liability to any
Underwriter with respect to the Designated Securities covered by such Pricing
Agreement except as provided in Section 6 and Section 8 hereof; but, if for any
other reason Designated Securities are not delivered by or on behalf of the
Company as provided herein, the Company will reimburse the Underwriters through
the Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including reasonable fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of such Designated Securities, but the Company shall then be
under no further liability to any Underwriter with respect to such Designated
Securities except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Securities shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by such Representatives jointly or by such of the Representatives, if any,
as may be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Underwriters shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Representatives as
set forth in the Pricing Agreement; and if to the Company shall be delivered or
sent by mail, telex or facsimile transmission to Protective Life Corporation,
0000 Xxxxxxx 000 Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000 (telecopier no. (205)
868-3597, attention of General Counsel; provided, however, that any notice to an
Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Underwriter at its address set forth in
the applicable Pricing Agreement or, if none in its Underwriters' Questionnaire,
or telex constituting such Questionnaire, which address will be supplied to the
Company by the Representatives upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding
upon, and inure solely to the benefit of, the Underwriters, the Company and, to
the extent provided in Section 8 and Section 10 hereof, the officers and
directors of the Company and each person who controls the Company or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement or any such Pricing Agreement. No purchaser of any of
the Securities from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
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14. Time shall be of the essence of each Pricing
Agreement. As used herein,"business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
16. This Agreement and each Pricing Agreement may be executed
by any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
Very truly yours,
PROTECTIVE LIFE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President, Investments
37369v2
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