<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SUPPLEMENT SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY
SUCH STATE.
<PAGE>
SUBJECT TO COMPLETION, DATED MARCH 25, 1994
PROSPECTUS SUPPLEMENT TO PROSPECTUS DATED MARCH [ ], 1994
[ ] PREFERRED SECURITIES
PLC CAPITAL L.L.C.
% CUMULATIVE MONTHLY INCOME PREFERRED SECURITIES, SERIES A ("MIPS"*)
(LIQUIDATION PREFERENCE $25 PER SERIES A PREFERRED SECURITY)
GUARANTEED TO THE EXTENT SET FORTH HEREIN BY
PROTECTIVE LIFE CORPORATION
---------
The % Cumulative Monthly Income Preferred Securities, Series A (the
"Series A Preferred Securities"), representing preferred limited liability
company interests offered hereby are being issued by PLC Capital L.L.C., a
limited liability company formed under the laws of the State of Delaware ("PLC
Capital"). PLC Capital was formed by Protective Life Corporation, a Delaware
corporation ("Protective Life"), solely to issue Preferred Securities and Common
Securities (each as defined herein) and loan the proceeds thereof to Protective
Life. Accordingly, the proceeds from the sale of Series A Preferred Securities,
together with capital contributions made in respect of Common Securities, will
be loaned by PLC Capital to Protective Life in exchange for subordinated
debentures of Protective Life (the "Series A Subordinated Debentures") having
the terms described herein. Interest and principal payments on the Series A
Subordinated Debentures are intended to fund the payment of periodic
distributions ("dividends") and redemption and liquidation distributions on the
Series A Preferred Securities and the Common Securities. See "Description of
Series A Subordinated Debentures".
(CONTINUED ON INSIDE COVER)
--------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS SUPPLEMENT OR THE PROSPECTUS TO WHICH IT RELATES.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
--------------
<TABLE>
<CAPTION>
INITIAL PUBLIC UNDERWRITING PROCEEDS TO PLC
OFFERING PRICE(1) COMMISSIONS(2) CAPITAL(1)(3)(4)
--------------------- --------------------- ---------------------
<S> <C> <C> <C>
Per Series A Preferred Security.................... $25.00 (3) $25.00
Total(5)........................................... $[ ] (3) $[ ]
<FN>
- --------------
(1) Plus accrued dividends, if any, from , 1994.
(2) Protective Life and PLC Capital have agreed to indemnify the several
Underwriters against certain liabilities, including liabilities under the
Securities Act of 1933, as amended. See "Underwriting."
(3) In view of the fact that the proceeds from the sale of the Series A
Preferred Securities will ultimately be loaned to Protective Life,
Protective Life will pay to the Underwriters, as compensation for the
arrangement of such loan, a commission of $ per Series A Preferred
Security (or $ in the aggregate), except that such compensation will be
$ per Series A Preferred Security sold to certain institutions, thus
reducing the aggregate compensation specified above. See "Underwriting."
(4) Before deducting estimated expenses of the offering of $ payable by
Protective Life.
(5) [PLC Capital has granted to the Underwriters a 30-day option to purchase,
on the same terms set forth above, up to [ ] additional Series A
Preferred Securities at the price to public (with an additional
underwriting commission) solely to cover over-allotments, if any. If the
option is exercised in full, the total price to public, proceeds to PLC
Capital and underwriting commissions (payable by Protective Life) will be
$ , $ and $ , respectively. See "Underwriting."]
</TABLE>
--------------
The Series A Preferred Securities offered hereby are offered severally by
the Underwriters, as specified herein, subject to receipt and acceptance by them
and subject to their right to reject any order in whole or in part. It is
expected that delivery of certificates for the Series A Preferred Securities
will be made only in book-entry form through the facilities of The Depository
Trust Company on or about April , 1994.
- --------------
*An application has been filed by Goldman, Sachs & Co. with the United States
Patent and Trademark Office for the registration of the MIPS servicemark.
GOLDMAN, SACHS & CO.
DEAN WITTER REYNOLDS INC.
KIDDER, PEABODY & CO.
INCORPORATED
THE ROBINSON-HUMPHREY COMPANY, INC.
-----------
The date of this Prospectus Supplement is April , 1994.
<PAGE>
(CONTINUED FROM FRONT COVER)
The payment of dividends, if and to the extent declared out of moneys held
by PLC Capital and legally available therefor, and payments on liquidation (to
the extent of the remaining assets of PLC Capital) or redemption with respect to
the Series A Preferred Securities, are guaranteed to the limited extent
described herein by a guarantee (the "Guarantee") of Protective Life. See
"Description of the Guarantee".
Holders of the Series A Preferred Securities will be entitled to receive, in
preference to holders of Common Securities, cumulative cash dividends, at an
annual rate of % of the liquidation preference of $25 per Series A Preferred
Security, accruing from the date of original issuance and payable monthly in
arrears on the last day of each calendar month, commencing April , 1994. No
dividends received by a holder of Series A Preferred Securities will be eligible
for the dividends received deduction for U.S. federal income tax purposes.
The Series A Preferred Securities are redeemable, at the option of PLC
Capital (with Protective Life's consent as borrower under the Series A
Subordinated Debentures), in whole or in part, at any time on or after April ,
1999 and will be redeemed, under certain circumstances, from the proceeds of any
cash repayment or permitted prepayment by Protective Life of the Series A
Subordinated Debentures, in each case at a cash redemption price of $25 per
Series A Preferred Security, plus accrued and unpaid dividends (whether or not
declared) to the redemption date (the "Redemption Price"). See "Terms of the
Series A Preferred Securities -- Mandatory Redemption Upon Repayment of Series A
Subordinated Debentures at Maturity." In addition, at the option of PLC Capital,
following the occurrence of an Investment Company Act Event or a Tax Event (each
as defined herein), the Series A Preferred Securities are redeemable, in whole
(but not in part), for cash at the Redemption Price or exchangeable in whole
(but not in part), for Series A Subordinated Debentures having an aggregate
principal amount and accrued and unpaid interest equal to the Redemption Price.
If the Series A Preferred Securities are exchanged for Series A Subordinated
Debentures, Protective Life has agreed to use its best efforts to have the
Series A Subordinated Debentures listed on the same exchange, if any, on which
the Series A Preferred Securities are listed. See "Terms of the Series A
Preferred Securities -- Optional Redemption."
In the event of the liquidation of PLC Capital, holders of Series A
Preferred Securities will be entitled to receive for each Series A Preferred
Security a liquidation preference of $25 plus accrued and unpaid dividends
(whether or not declared) to the date of payment before any liquidation payments
are made in respect of Common Securities. See "Terms of the Series A Preferred
Securities -- Liquidation Distribution."
--------------
FOR A DISCUSSION OF CERTAIN FACTORS TO BE CONSIDERED IN CONNECTION WITH AN
INVESTMENT IN THE SERIES A PREFERRED SECURITIES, INCLUDING CIRCUMSTANCES UNDER
WHICH PAYMENT OF DIVIDENDS ON THE SERIES A PREFERRED SECURITIES MAY BE DEFERRED,
SEE "CERTAIN INVESTMENT CONSIDERATIONS".
--------------
Application will be made to list the Series A Preferred Securities on the
New York Stock Exchange (the "NYSE").
S-2
<PAGE>
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE SECURITIES
OFFERED HEREBY AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE OR
OTHERWISE AND, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
------------------------
FOR NORTH CAROLINA PURCHASERS: THESE SECURITIES HAVE NOT BEEN APPROVED OR
DISAPPROVED BY THE COMMISSIONER OF INSURANCE FOR THE STATE OF NORTH CAROLINA,
NOR HAS THE COMMISSIONER OF INSURANCE RULED UPON THE ACCURACY OR ADEQUACY OF
THIS DOCUMENT.
------------------------
PLC CAPITAL L.L.C.
PLC Capital is a limited liability company formed under the laws of the
State of Delaware. Protective Life owns, directly and indirectly, all the
outstanding common limited liability interests ("Common Securities") of PLC
Capital, which Common Securities are nontransferable. PLC Capital was formed by
Protective Life and one of its subsidiaries solely to issue preferred limited
liability company interests ("Preferred Securities") and Common Securities (the
Preferred Securities together with the Common Securities, the "Membership
Securities") and to lend the proceeds thereof to Protective Life in exchange for
subordinated debentures ("Subordinated Debentures"). Interest and principal on
the Subordinated Debentures are intended to fund the payment of dividends and
redemption and liquidation distributions on the Membership Securities.
Accordingly, PLC Capital's sole source of cash flow is Protective Life, and PLC
Capital's ability to make dividend and other payments in respect of the Series A
Preferred Securities will be dependent on interest and principal payments by
Protective Life on the Series A Subordinated Debentures. See "Protective Life
Corporation". PLC Capital will be managed by Protective Life in its capacity as
a holder of Common Securities (in such capacity, the "Managing Member"). PLC
Capital's offices are located at 2801 Highway 280 South, Birmingham, Alabama
35223 (Telephone: (205) 879-9230)
PROTECTIVE LIFE CORPORATION
Protective Life, a Delaware corporation incorporated in 1981, is an
insurance holding company. The principal business of Protective Life is the
ownership of a group of life insurance companies that provide financial services
through the production, distribution, and administration of insurance and
investment products. Protective Life Insurance Company ("Protective Life
Insurance"), founded in 1907, is Protective Life's principal operating
subsidiary. Protective Life Insurance has five marketing divisions: Agency,
Group, Guaranteed Investment Contracts, Financial Institutions, and Investment
Products. Protective Life Insurance has two additional business segments:
Acquisitions and Corporate and Other. Unless the context otherwise requires, as
used in this section "Protective Life" refers to the consolidated group of
Protective Life Corporation and its subsidiaries.
During 1993, Protective Life reported revenues of $760 million and net
income of $57 million. At December 31, 1993, Protective Life had total assets of
$5.3 billion, stockholders' equity of $361 million and life insurance inforce of
$42.5 billion. Protective Life's insurance subsidiaries generated approximately
94% of its revenues in 1993. Protective Life Insurance is rated "AA" for
claims-paying ability from both Standard & Poor's Corporation and Duff & Phelps
Credit Rating Co. Such ratings are based on factors of relevance primarily to
policyholders and are not directed to the protection of investors.
AGENCY DIVISION
Since 1983, the Agency Division has utilized a distribution system based on
experienced independent personal producing general agents who are recruited by
regional sales managers. At December 31, 1993, there were 26 regional sales
managers located throughout the United States and
S-3
<PAGE>
approximately 12,850 independent personal producing general agents, brokers, and
other agents under contract. In 1993 the Division began distributing insurance
products through securities broker-dealers.
Current marketing efforts in the Agency Division are directed toward
universal life products and products designed to compete in the term
marketplace. Protective Life currently emphasizes back-end loaded universal life
policies which reward the continuing policyholder and which are designed to
maintain the persistency of its universal life business. The products designed
to compete in the term marketplace are term-like policies with guaranteed level
premiums for the first 15 years which provide a competitive net cost to the
insured.
GROUP DIVISION
Protective Life markets its group insurance products primarily in the
southeastern and southwestern United States using the services of brokers who
specialize in group products. Sales offices in Alabama, Florida, Georgia,
Illinois, Missouri, North Carolina, Ohio, Oklahoma, Tennessee and Texas are
maintained to serve these brokers. The Group Division offers substantially all
forms of group insurance customary in the industry, making available complete
packages of life and accident and health insurance to employers. The life and
accident and health insurance packages include hospital and medical coverages as
well as dental and disability coverages. To address rising health care costs,
the Group Division provides cost containment services such as utilization review
and catastrophic case management. Group policies are directed primarily at
employers and associations with between 25 and 1,000 employees.
Group accident and health insurance is generally considered to be cyclical.
Profits rise or fall as competitive forces allow or prevent rate increases to
keep pace with changes in group health medical costs. Protective Life is placing
marketing emphasis on other specialty health insurance products which are less
affected by medical cost inflation. These products include dental insurance
policies and hospital indemnity policies which are distributed nationally
through the Group Division's existing distribution system, as well as through
joint marketing arrangements with independent marketing organizations, and
through reinsurance contracts with other insurers. These products also include
an individual cancer insurance policy marketed through a nationwide network of
agents. It is anticipated that a significant part of the growth in Protective
Life's health insurance premium income in the next several years will be from
such specialty products.
FINANCIAL INSTITUTIONS DIVISION
The Financial Institutions Division specializes in marketing insurance
products through commercial banks, savings and loan associations, and mortgage
bankers. The Division markets an array of life and health products, the majority
of which are used to secure consumer and mortgage loans made by financial
institutions located primarily in the southeastern United States. The Division
also markets life and health products through the consumer finance industry and
through automobile dealerships. The Division markets through both employee field
representatives and brokers. The Division also offers certain products through
direct mail solicitation to customers of financial institutions.
INVESTMENT PRODUCTS DIVISION
The Investment Products Division manufactures, sells, and supports annuity
products. These products are sold through the Agency Division, financial
institutions, and broker-dealer distribution channels. This Division was formed
to respond to an increased consumer demand for savings vehicles. The Division
also includes Protective Equity Services, Inc. ("PES"), a securities
broker-dealer subsidiary. Through PES, licensed members of Protective Life
Insurance's field force can sell stocks, bonds, mutual funds, and other
financial instruments that may be manufactured or issued by companies other than
Protective Life Insurance.
GUARANTEED INVESTMENT CONTRACTS DIVISION
In 1989, Protective Life Insurance began selling guaranteed investment
contracts ("GICs"). Protective Life Insurance's GICs are contracts, generally
issued to a 401(k) or other retirement savings plan, which guarantee a fixed
return on deposits with such a plan for a specified period and often provide
S-4
<PAGE>
flexibility for withdrawals, in keeping with the benefits provided by the plan.
Protective Life Insurance also offers a related product which is purchased
primarily as a temporary investment vehicle by the trustees of escrowed
municipal bond proceeds.
ACQUISITIONS DIVISION
Protective Life actively seeks to acquire blocks of insurance policies.
These acquisitions may be accomplished through acquisitions of companies or
through the assumption or reinsurance of policies. Reinsurance transactions may
be made with court-administered insolvent companies or with companies otherwise
divesting themselves of blocks of business. Generally, such acquisitions do not
include the acquisition of an active sales force. Blocks of policies acquired
through the Acquisitions Division are administered as "closed" blocks; I.E., no
new policies are sold. Therefore, the amount of insurance inforce for a
particular block of acquired business is expected to decline with time due to
lapses and deaths of the insureds. The experience of Protective Life has been
that, in many cases, acquired or reinsured business can be administered more
efficiently by Protective Life than by previous management or court
administrators.
CORPORATE AND OTHER
The Corporate and Other segment consists of several small insurance lines of
business and the operations of several small noninsurance subsidiaries.
CERTAIN INVESTMENT CONSIDERATIONS
The proceeds from the sale of the Series A Preferred Securities offered
hereby, together with the capital contributions made in respect of the Common
Securities, will be loaned by PLC Capital to Protective LIfe in exchange for
Series A Subordinated Debentures of Protective Life. After giving effect
thereto, PLC Capital will have no assets other than such Series A Subordinated
Debentures. Thus, payments by PLC Capital on the Series A Preferred Securities
will be completely dependent on payments by Protective Life on the Series A
Subordinated Debentures. Accordingly, prospective purchasers of Series A
Preferred Securities should carefully review the information contained elsewhere
in this Prospectus Supplement and in the Prospectus and should particularly
consider the following matters concerning such payments:
Protective Life has the right under the Series A Subordinated Debentures
to extend interest payment periods to up to 60 months, and, as a
consequence, monthly dividends on the Series A Preferred Securities can be
deferred (but will continue to accumulate, together with additional
dividends on any such accrued but unpaid dividends at the dividend rate) by
Protective Life during any such extended interest payment period. In the
event that Protective Life exercises this right, Protective Life may not
declare dividends on or repurchase, except as described herein, any shares
of its capital stock. See "Description of the Series A Subordinated
Debentures -- Interest". Should an extended interest payment period occur,
PLC Capital will continue to accrue income for U.S. federal income tax
purposes which will be allocated, but not distributed, to record holders of
Series A Preferred Securities. As a result, such holders will include such
amounts in income for U.S. federal income tax purposes in advance of the
receipt of cash, and any such holders who dispose of Series A Preferred
Securities prior to the record date for payment of dividends following such
record period will also include such amounts in income but will not receive
cash related thereto. See "Certain Federal Tax Considerations Relating to
the Series A Preferred Securities -- Potential Extension of Payment Period."
Protective Life's obligations under the Series A Subordinated Debentures
are subordinate and junior in right of payment to all Senior Indebtedness of
Protective Life. See "Description of the Series A Subordinated Debentures --
Subordination."
Moreover, Protective Life's ability to pay principal and interest on
Senior Indebtedness and the Series A Subordinated Debentures is affected by
the ability of its insurance company subsidiaries, its principal sources of
cash flow, to declare and distribute dividends and to make payments on
surplus notes, both of which may be limited by regulatory restrictions and,
in the case of payments on surplus notes, by certain financial covenants.
Protective Life's cash flow is also dependent on
S-5
<PAGE>
revenues from investment, data processing, legal and management services
rendered to its subsidiaries. Insurance company subsidiaries of Protective
Life are subject to various state statutory and regulatory restrictions,
applicable to insurance companies generally, that limit the amount of cash
dividends, loans and advances that those subsidiaries may pay to Protective
Life. The restrictions are generally based on certain levels of surplus,
investment income and operating income, as determined under statutory
insurance accounting practices. In general, dividends up to specified levels
are considered ordinary and may be paid thirty days after written notice to
the insurance commissioner of the state of domicile unless such commissioner
objects to the dividend prior to the expiration of such period. Dividends in
larger amounts are considered extraordinary and are subject to affirmative
prior approval by such commissioner. The maximum amount that would qualify
as ordinary dividends to Protective Life by its insurance subsidiaries in
1994 is estimated to be $57 million as of December 31, 1993. No assurance
can be given that more stringent restrictions will not be adopted from time
to time by states in which Protective Life's insurance subsidiaries are
domiciled, which restrictions could have the effect, under certain
circumstances, of significantly reducing dividends or other amounts payable
to Protective Life by such subsidiaries without affirmative prior approval
by state regulatory authorities.
In the event of the insolvency, liquidation, reorganization, dissolution
or other winding-up of a subsidiary of Protective Life, all creditors of
such subsidiary, including holders of life and health insurance policies,
would be entitled to payment in full out of the assets of such subsidiary
before Protective Life, as shareholder or holder of surplus notes, would be
entitled to any payment and thus such creditors would have to be paid in
full before the creditors of Protective Life (including the holders of the
Series A Subordinated Debentures) would be entitled to receive any payment
from the assets of such subsidiary.
CAPITALIZATION OF PROTECTIVE LIFE
The following table sets forth the unaudited summary capitalization of
Protective Life and its consolidated subsidiaries at December 31, 1993 and as
adjusted to give effect to the sale of the Series A Preferred Securities offered
hereby and the application of the proceeds therefrom as described under "Use of
Proceeds" herein. The table should be read in conjunction with Protective Life's
consolidated financial statements and notes thereto and other financial data
incorporated by reference herein. See "Incorporation of Certain Documents by
Reference" in the accompanying Prospectus.
<TABLE>
<CAPTION>
AS OF DECEMBER 31, 1993
-------------------------
ACTUAL AS ADJUSTED
----------- ------------
(IN THOUSANDS)
<S> <C> <C>
Short-term debt
Current portion of long-term debt.................................................... $ 9,520 $ --
----------- ------------
Total short-term debt.............................................................. 9,520 --
----------- ------------
Long-term debt
Notes payable to banks............................................................... 137,500 --
Mortgage and other notes payable less current portion................................ 98 --
----------- ------------
Total long-term debt............................................................... 137,598 --
Series A Preferred Securities of PLC Capital........................................... --
Stockholders' equity
Preferred Stock...................................................................... 0 --
Junior Participating Cumulative Preferred Stock...................................... 0 --
Common equity........................................................................ 360,733 --
----------- ------------
Total stockholders' equity......................................................... 360,733 --
----------- ------------
Total capitalization............................................................. $ 507,851 $ --
----------- ------------
----------- ------------
</TABLE>
S-6
<PAGE>
USE OF PROCEEDS
The proceeds from the sale of the Series A Preferred Securities (together
with capital contributed in respect of Common Securities) will be loaned to
Protective Life in exchange for Series A Subordinated Debentures. Protective
Life will use such borrowings for general corporate purposes, including, but not
limited to, repayments of indebtedness of Protective Life or its subsidiaries.
PROTECTIVE LIFE CORPORATION SUMMARY CONSOLIDATED FINANCIAL DATA
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
----------------------------------------------------------
1993 1992 1991 1990 1989
---------- ---------- ---------- ---------- ----------
(DOLLARS IN THOUSANDS EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA
Premiums and Policy Fees............................. $ 370,758 $ 323,136 $ 273,975 $ 248,448 $ 236,830
Net Investment Income................................ 362,130 284,069 233,502 136,995 82,453
Realized Investment Gains (Losses)................... 5,054 (14) (3,085) (3,154) 209
Other Income......................................... 21,695 18,835 11,556 8,197 5,231
---------- ---------- ---------- ---------- ----------
Total Revenues....................................... 759,637 626,026 515,948 390,486 324,723
Benefits and Expenses................................ 674,593 566,079 464,245 350,204 292,437
---------- ---------- ---------- ---------- ----------
Income Before Income Tax............................. 85,044 59,947 51,703 40,282 32,286
Net Income........................................... 56,550(1) 41,420(2) 35,789 28,133 21,793
PRE-TAX INCOME BY BUSINESS SEGMENT
Agency............................................... 20,064(3) 12,985 12,087 9,877 3,703
Group................................................ 10,394 7,731 8,146 6,193 6,059
Financial Institutions............................... 8,196 5,411 4,447 3,120 2,964
Investment Products.................................. 2,931(3) 4,601 391 (1,351) (1,423)
Guaranteed Investment Contracts...................... 25,405 14,533 9,933(4) 2,919(4) (289)
Acquisitions......................................... 29,845(3) 20,031 23,494 17,659 17,736
Corporate and Other.................................. (13,667 (4) (3,896 (4) (4,110 (4) 3,624 3,327
Unallocated and Realized Investment Gains............ 1,876 (1,449) (2,685) (1,759) 209
---------- ---------- ---------- ---------- ----------
Total Pre-tax Income................................. 85,044 59,947 51,703 40,282 32,286
BALANCE SHEET DATA
Invested Assets:
Fixed Maturities................................... 3,051,292(5) 2,185,015 1,541,991 1,035,176 421,165
Equity Securities.................................. 40,596 26,588 31,235 23,222 20,657
Mortgage Loans on Real Estate...................... 1,407,744 1,178,164 985,159 666,150 388,913
Investment Real Estate............................. 22,061 17,020 22,240 16,713 10,651
Policy Loans....................................... 141,135 117,873 120,527 127,253 107,594
Other Long-term Investments........................ 20,191 19,618 29,259 34,676 20,527
Short-term Investments............................. 83,692 52,792 65,344 126,046 36,412
---------- ---------- ---------- ---------- ----------
Total Invested Assets................................ 4,766,711 3,597,070 2,795,755 2,029,236 1,005,919
Total Assets......................................... 5,316,005 4,006,667 3,120,290 2,331,197 1,232,280
Total Debt........................................... 147,118 88,248 57,579 81,145 27,831
Total Liabilities.................................... 4,955,272 3,725,267 2,868,545 2,108,871 1,020,611
Stockholders' Equity................................. 360,733(5) 281,400 251,745 222,326 211,669
PER SHARE DATA
Net Income........................................... 4.13(1) 3.03(2) 2.62 2.07 1.58
Stockholders' Equity................................. 26.34(5) 20.56 18.44 16.29 15.50
STATUTORY FINANCIAL DATA(6)
Net Income........................................... 53,138 32,426 35,196 25,335 20,483
Total Capital and Surplus............................ $ 265,075 $ 208,476 $ 189,473 $ 167,325 $ 150,636
</TABLE>
- ------------------------------
1. Reduced by one-time adjustment of income tax expense of $1,261 or $.09 per
share due to increase in the corporate income tax rate from 34% to 35%.
2. Reflects the adoption of SFAS No. 106, "Employers' Accounting For
Postretirement Benefits Other Than Pensions," which decreased net income
$1,053 or $.08 per share.
3. In 1993 Protective Life changed the method used to apportion net investment
income within Protective Life. The change resulted in increased income
attributable to the Agency, Investment Products, and Acquisitions business
segments of $3.0 million, $2.0 million and $2.6 million, respectively, while
decreasing income of the Corporate and Other segment.
4. Pre-tax income for the Guaranteed Investment Contracts Business segment has
not been reduced by pre-tax minority interest of $1,631 in 1991 and $1,326
in 1990. Pre-tax income for the Corporate and Other business segment has not
been reduced by pre-tax minority interest of $19 in 1993 and $90 in 1992 and
1991.
5. Reflects the adoption of SFAS No. 115, "Accounting For Certain IInvestments
in Debt and Equity Securities." The effect of adopting SFAS No. 115 was to
increase fixed maturities by $65.6 million, decrease deferred policy
acquisition costs by $12.4 million, increase the liability for deferred
income Taxes by $18.6 million, and increase Stockholders' Equity by $34.6
million or $2.52 per share.
6. Of Protective Life's insurance subsidiaries prepared in conformity with
statutory accounting practices prescribed or permitted by insurance
regulatory authorities.
S-7
<PAGE>
TERMS OF THE SERIES A PREFERRED SECURITIES
GENERAL
Preferred Securities of PLC Capital may be issued from time to time in one
or more series with such dividend rights, liquidation preferences, redemption
provisions, voting rights and other rights, powers and duties as are established
by the Limited Liability Company Agreement (the "L.L.C. Agreement") of PLC
Capital and a written action (the "Action") taken, or to be taken, by the
Managing Member to amend and supplement the L.L.C. Agreement (which Actions,
when taken, constitute an amendment and supplement to, and become a part of, the
L.L.C. Agreement). The Series A Preferred Securities constitute one such series
of Preferred Securities of PLC Capital. The summary of certain terms of the
Series A Preferred Securities set forth below does not purport to be complete
and is subject to, and qualified in its entirety by reference to, the L.L.C.
Agreement (including the Action establishing the rights, powers and duties
relating to the Series A Preferred Securities, a copy of which Action will have
been filed with the Securities and Exchange Commission (the "Commission") at or
prior to the time of the sales of the Series A Preferred Securities).
DIVIDENDS
Cumulative dividends on the Series A Preferred Securities will accrue at a
rate per annum of % on the liquidation preference thereof (or $ per Series
A Preferred Security per annum) from the date of original issuance thereof and
will be payable monthly in arrears on the last day of each calendar month of
each year, commencing April 30, 1994, when, as and if declared by the Managing
Member to holders of record on the record date therefor. Payment of dividends is
limited to the amount of funds held by PLC Capital and legally available
therefor. See "Description of the Series A Subordinated Debentures" and
"Description of the Guarantee -- General". Dividends will be computed on the
basis of twelve 30-day months and a 360-day year and, for any dividend period
shorter than a full calendar month, will be computed on the basis of the actual
number of calendar days elapsed in such period.
Dividends declared on the Series A Preferred Securities will be payable to
the record holders thereof as they appear on the register for the Series A
Preferred Securities on the relevant record dates, which will be one Business
Day prior to the relevant payment dates. Subject to any applicable fiscal or
other laws and regulations, each such payment will be made as described under
"Book-Entry-Only Issuance; The Depository Trust Company" below. In the event
that any date on which dividends are payable on the Series A Preferred
Securities is not a day on which banks in The City of New York are open for
business (a "Business Day"), then payment of the dividend payable on such date
will be made on the next succeeding Business Day (and without any interest or
other payment in respect of any such delay) except that, if such Business Day is
in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date.
Under the L.L.C. Agreement, dividends on the Series A Preferred Securities
must be declared by the Managing Member in any calendar year or portion thereof
to the extent that PLC Capital reasonably anticipates that at the time of
payment it will have, and must be paid by PLC Capital to the extent that at the
time of proposed payment it has, (x) funds legally available for the payment of
such dividends and (y) cash on hand sufficient to permit such payment. It is
anticipated that such funds will be derived from payments by Protective Life of
interest on the Series A Subordinated Debentures. Under the terms of the Series
A Subordinated Debentures, so long as Protective Life is not in default in the
payment of interest on the Series A Subordinated Debentures, Protective Life
shall have the right at any time to extend the interest payment period to the
next interest payment date by a period (not to exceed 60 months from the last
date on which interest was paid in full) at the end of which Protective Life
shall pay all interest then accrued and unpaid (together with interest thereon
at the rate specified for the Series A Subordinated Debentures to the extent
permitted by applicable law). During any such extended interest period, or at
any time during which there is an uncured Default or Event of Default (each as
hereinafter defined) under the Series A Subordinated Debentures, Protective Life
shall not pay any dividends on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its shares of capital stock or
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make any guarantee payments with respect to the foregoing (other than
redemptions or purchases pursuant to any share purchase rights plan or employee
stock plan of Protective Life and payments under any guarantee of the Series A
Preferred Securities or other Preferred Securities ranking PARI PASSU with the
Series A Preferred Securities). Protective Life is required to give PLC Capital
not less than five Business Days' prior notice of its selection of such longer
interest payment period. See "Description of the Series A Subordinated
Debentures."
If dividends can be paid only in part on the Series A Preferred Securities
in any calendar year or portion thereof as a result of the lack of sufficient
funds legally available for the payment of dividends, then such partial
dividends shall be paid on the respective dividend payment dates on a pro rata
basis to holders of such Series A Preferred Securities. If any dividends on the
Series A Preferred Securities are not paid in full on any dividend payment date,
additional dividends will accrue on any accrued and unpaid dividends at the
dividend rate for the Series A Preferred Securities specified above.
Except as described herein, holders of the Series A Preferred Securities
will have no other right to participate or share in the profits or assets of PLC
Capital.
CERTAIN RESTRICTIONS ON PLC CAPITAL
If dividends have not been paid in full on the Series A Preferred
Securities, PLC Capital shall not:
(i) pay, or declare and set aside for payment, any dividends on any
other preferred or preference limited liability company interest in PLC
Capital ranking PARI PASSU with the Series A Preferred Securities as regards
participation in profits of PLC Capital ("Dividend Parity Securities"),
unless such dividends are paid, declared or set aside for payment on the
Dividend Parity Securities and the Series A Preferred Securities on a pro
rata basis on the date such dividends are paid, so that
(x) (A) The aggregate amount of dividends paid on the Series A
Preferred Securities bears to (B) the aggregate amount of dividends paid
on such Dividend Parity Securities the same ratio as
(y) (A) the aggregate of all accrued and unpaid dividends in respect
of the Series A Preferred Securities bears to (B) the aggregate of all
accrued and unpaid dividends in respect of such Dividend Parity
Securities;
(ii) pay, or declare and set aside for payment, any dividends on any
Common Securities or limited liability company interests of PLC Capital
ranking junior to the Series A Preferred Securities as to dividends
("Dividend Junior Securities"); or
(iii) redeem, purchase or otherwise acquire any Dividend Parity
Securities or Dividend Junior Securities;
until, in each case, such time as all accrued and unpaid dividends on the Series
A Preferred Securities shall have been paid in full for all dividend periods
terminating on or prior to, in the case of clauses (i) and (ii), such payment,
and in the case of clause (iii), the date of such redemption, purchase or
acquisition. As of the date of this Prospectus Supplement, there are no Dividend
Parity Securities outstanding.
PLC Capital may not engage in any business or activity other than issuing
its Common Securities, the Series A Preferred Securities and other series of
Preferred Securities having terms generally consistent with those of the Series
A Preferred Securities (other than dividend rate, and other than changes that
would not materially adversely affect the ability of PLC Capital to make full
and timely dividend payments or payments upon liquidation to the holders of the
Series A Preferred Securities), lending the proceeds thereof to Protective Life
in return for Subordinated Debentures in an aggregate principal amount equal to
the amount of such loan, bearing interest at a rate at least equal to the
dividend rate on such Preferred Securities and otherwise having terms generally
consistent with those of the Series A Preferred Securities (other than changes
that would not materially adversely affect the ability of PLC Capital to make
full and timely dividend payments or payments upon liquidation to the holders of
the Series A Preferred
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Securities) and engaging in activities incidental or conducive to the foregoing.
PLC Capital may not consolidate or merge with, or convey, transfer or lease its
properties and assets substantially as an entirety to, any corporation or other
body.
Notwithstanding the foregoing, PLC Capital may, for purposes of changing its
state of domicile, without the consent of the holders of any series of Preferred
Securities, consolidate or merge with or into a limited liability company or
limited partnership formed under the laws of any state of the United States;
PROVIDED that (i) such successor limited liability company or limited
partnership expressly assumes all of the obligations of PLC Capital under each
series of Preferred Securities then outstanding, (ii) Protective Life expressly
acknowledges such successor as the holder of the Subordinated Debentures
pertaining to each series of Preferred Securities then outstanding, (iii) such
merger or consolidation does not cause any series of Preferred Securities then
outstanding to be delisted by any national securities exchange or other
organization on which such Preferred Securities are then listed, (iv) holders of
then outstanding Preferred Securities will not recognize any gain or loss for
federal income tax purposes as a result of such merger or consolidation and (v)
following such merger or consolidation, Protective Life and such successor
limited liability company or limited partnership are and will remain in
compliance with the Investment Company Act of 1940, as amended.
The Managing Member is authorized to conduct its affairs and to operate PLC
Capital in such a way that PLC Capital would not be deemed to be an "investment
company" required to be registered under the Investment Company Act of 1940, as
amended (the "1940 Act") or taxed as a corporation for federal income tax
purposes and so that any loans made by PLC Capital to Protective Life will be
treated as indebtedness for federal income tax purposes. In this connection, the
Managing Member is authorized to take any action that (i) is not inconsistent
with applicable law, the Certificate of Formation of PLC Capital and the L.L.C.
Agreement, (ii) does not materially adversely affect the holders of Series A
Preferred Securities and (iii) the Managing Member determines in its sole
discretion to be necessary or desirable for such purposes.
MANDATORY REDEMPTION UPON REPAYMENT OF SERIES A
SUBORDINATED DEBENTURES AT MATURITY
The proceeds from any repayment at maturity of any Series A Subordinated
Debentures (or any new loan replacing the Series A Subordinated Debentures as
contemplated by the proviso to this sentence) shall be applied to redeem Series
A Preferred Securities for cash at the Redemption Price, PROVIDED that all or
any portion of the principal amount of Series A Subordinated Debentures repaid
by Protective Life may be reloaned to Protective Life, and not used for such
redemption, if at the time of such new loan, and as determined in the judgment
of the Managing Member and its financial advisor, selected by the Managing
Member and who shall not be affiliated with the Managing Member and shall be
among the 30 largest investment security firms, measured by total capital, in
the United States at the time of the proposed new loan, (i) Protective Life is
not the subject of a pending case under the United States Bankruptcy Code, (ii)
Protective Life is not in default on any Subordinated Debentures, (iii)
Protective Life has timely made all required monthly payments of interest on all
Subordinated Debentures for the immediately preceding 18 months, (iv) PLC
Capital is not in arrearage on payments of dividends on any Preferred
Securities, (v) Protective Life is expected to be able to make timely payment of
principal and interest on such new loan, (vi) such new loan is being made on
terms, and under circumstances, that are no less favorable to PLC Capital than
those that a lender would require for a similar loan to an unrelated party,
(vii) such new loan is being made at a rate of interest sufficient to provide
monthly payments of interest equal to or greater than the amount of monthly
dividend payments required in respect of the Series A Preferred Securities,
(viii) such new loan is being made for a fixed term that is consistent with
market circumstances and Protective Life's financial condition, (ix) the senior
unsecured long-term debt of Protective Life is rated not less than BBB-(or the
equivalent) by Standard & Poor's Corporation or Baa3 (or the equivalent) by
Moody's Investors Services, Inc. (or if either of such rating organizations is
not then rating Protective Life's senior unsecured long-term debt, the
equivalent of such rating by any other "nationally recognized statistical rating
organization," as that term is defined by the Commission for purposes of Rule
436(g)(2) under the Securities Act) and any subordinated long-
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term debt of Protective Life or, if there is no such debt then outstanding, the
Preferred Securities of such series, are rated not less than BBB-(or the
equivalent) by Standard & Poor's Corporation or Baa3 (or the equivalent) by
Moody's Investors Service, Inc. or the equivalent of either such rating by any
other "nationally recognized statistical rating organization", (x) such new loan
will not be convertible or exchangeable into any equity interest of or in
Protective Life or any of its affiliates; (xi) such new loan shall not pay any
contingent interest or other interest determined by reference to, or otherwise
participate in, the earnings or profits of the borrower; (xii) the interest
payable on such new loan will not exceed 175% of the dividend rate on the Series
A Preferred Securities; and (xiii) in any event, no new loan shall have a final
maturity later than the 50th anniversary of the original issuance of the Series
A Preferred Securities. If, at the maturity of the Series A Subordinated
Debentures, an amount less than the entire principal amount of the Series A
Subordinated Debentures is reloaned to Protective Life, the amount of such
principal not so reloaned shall be used to effect a partial redemption of the
Series A Preferred Securities, provided that, if a partial redemption would
result in a delisting of the Series A Preferred Securities, no amount of
principal may be reloaned to Protective Life, and the Series A Preferred
Securities shall be redeemed in whole. In the event that fewer than all the
outstanding Series A Preferred Securities are to be redeemed, the Series A
Preferred Securities to be redeemed will be selected as described under
"Book-Entry-Only Issuance; The Depository Trust Company" below.
OPTIONAL REDEMPTION
The Series A Preferred Securities are redeemable for cash, at the option of
PLC Capital (with the prior consent of Protective Life as borrower under the
Series A Subordianted Debentures), in whole or in part, at any time and from
time to time, on or after April , 1999, upon not less than 30 nor more than 60
days' notice to the holders of the Series A Preferred Securities, at the
Redemption Price. In the event that fewer than all the outstanding Series A
Preferred Securities are to be so redeemed, the Series A Preferred Securities to
be redeemed will be selected as described under "Book-Entry-Only Issuance; The
Depository Trust Company" below. PLC Capital will not redeem fewer than all the
outstanding Series A Preferred Securities unless all accumulated and unpaid
dividends have been paid on all Series A Preferred Securities for all monthly
dividend periods terminating on or prior to the date of redemption. In addition,
if a partial redemption would result in a delisting of the Series A Preferred
Securities, PLC Capital may only redeem the Series A Preferred Securities in
whole.
At any time after the issuance of the Series A Preferred Securities, at the
option of PLC Capital (with the prior written consent of Protective Life as
borrower under the Series A Subordinated Debentures), the Series A Preferred
Securities may be redeemed, in whole (but not in part), upon not less than 30
nor more than 60 days' notice, at the Redemption Price or in exchange for Series
A Subordinated Debentures having, at the time of exchange, (a) an aggregate
principal amount equal to $25 per Series A Preferred Security so exchanged and
(b) accrued and unpaid interest equal to any accrued and unpaid dividends
(whether or not declared) at the date fixed for exchange on the Series A
Preferred Securities so exchanged in the event that, on or after the day before
the date of this Prospectus Supplement, PLC Capital or Protective Life shall
have obtained an opinion of nationally recognized independent counsel
experienced in such matters to the effect that, as a result of a change in U.S.
law or regulation, or a written change in interpretation or application of U.S.
law or regulation, by any legislative body, court or governmental agency or
regulatory authority (including the enactment or imminent enactment of any
legislation and the publication of any judicial decision or regulatory
determination), (i) PLC Capital may be considered an "investment company" under
the 1940 Act or (ii) direct or indirect ownership of PLC Capital's Common
Securities would cause Protective Life to be considered an "investment company"
under the 1940 Act (each, an "Investment Company Act Event").
In addition, at any time after the issuance of the Series A Preferred
Securities upon not less than 30 nor more than 60 days' notice, Protective Life
may cause PLC Capital to redeem the Series A Preferred Securities in exchange
for Series A Subordinated Debentures having, at the time of exchange, (a) an
aggregate principal amount equal to $25 per Series A Preferred Security so
exchanged and (b) accrued and unpaid interest equal to accrued and unpaid
dividends (whether or not declared) at the date fixed for exchange on the Series
A Preferred Securities so exchanged if Protective Life and PLC Capital have
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received an opinion of independent nationally recognized independent tax counsel
experienced in such matters to the effect that, as a result of any change on or
after the day before the date of this Prospectus Supplement in U.S. law or
regulation, or a written change in interpretation or application of U.S. law or
regulation, by any legislative body, court or governmental agency or regulatory
authority (including the enactment or imminent enactment of any legislation and
the publication of any judicial decisions or regulatory determinations), there
exists more than an insubstantial risk that (i) Protective Life will be
precluded from deducting the interest on the Series A Subordinated Debentures
for federal income tax purposes or (ii) PLC Capital is subject to federal income
tax with respect to the interest received on the Series A Subordinated
Debentures or more than a DE MINIMIS amount of other taxes, duties or other
governmental charges. Furthermore, Protective Life shall have the right, upon
not less than 30 nor more than 60 days' notice, to cause PLC Capital to redeem
the Series A Preferred Securities for cash at the Redemption Price if Protective
Life has received an opinion of independent nationally recognized legal counsel
that, as a result of a change in U.S. law as described above, there exists more
than an insubstantial risk that Protective Life would be precluded from
deducting the interest on the Series A Subordinated Debentures for federal
income tax purposes even if the Series A Preferred Securities were exchanged for
the Series A Subordinated Debentures as described above (the receipt by
Protective Life and/or PLC Capital any of the opinions described in this
paragraph, each a "Tax Event").
After the date fixed for any such exchange, (i) the Series A Preferred
Securities will no longer be deemed to be outstanding, (ii) Depository Trust
Company ("DTC") or its nominee, as the record holder of the Series A Preferred
Securities, will exchange the global certificate or certificates representing
the Series A Preferred Securities for a registered global certificate or
certificates representing the Series A Subordinated Debentures to be delivered
upon such exchange, (iii) any certificates representing Series A Preferred
Securities not held by DTC or its nominee will be deemed to represent Series A
Subordinated Debentures having a principal amount equal to the stated liquidated
preference of such Series A Preferred Securities until such certificates are
presented to PLC Capital or its agent for exchange and (iv) all rights of the
holders of Series A Preferred Securities so exchanged will cease, except the
right of such holders to receive Series A Subordinated Debentures.
If the Series A Preferred Securities are exchanged for Series A Subordinated
Debentures, Protective Life has agreed to use its best efforts to have the
Series A Subordinated Debentures listed on the same exchange, if any, on which
the Series A Preferred Securities are listed.
If PLC Capital gives a notice of redemption for cash in respect of the
Series A Preferred Securities, then, by 12:00 noon, New York time, on the
redemption date, PLC Capital will irrevocably deposit with The Depository Trust
Company funds sufficient to pay the Redemption Price, and will give The
Depository Trust Company irrevocable instructions and authority to pay the
Redemption Price to the holders thereof. See "Book-Entry-Only Issuance; The
Depository Trust Company." If such notice of redemption shall have been given
and funds deposited as required, then upon the date of such deposit, all rights
of holders of such Series A Preferred Securities so called for redemption will
cease, except the right of such holders of such securities to receive the
Redemption Price, but without interest, and such securities will cease to be
outstanding. In the event that any date on which any payment in respect of the
redemption of Series A Preferred Securities is not a Business Day, then payment
of the redemption price payable on such date will be made on the next succeeding
Business Day (and without any interest or other payment in respect of any such
delay), except that, if such Business Day falls in the next calendar year, such
payment will be made on the immediately preceding Business Day. In the event
that payment of the redemption price in respect of Series A Preferred Securities
is improperly withheld or refused and not paid either by PLC Capital or by the
Guarantor pursuant to the Guarantee, dividends on such securities will continue
to accrue, at the then applicable rate, from the original redemption date to the
date of payment, in which case the actual payment date will be considered the
date fixed for redemption for purposes of calculating the Redemption Price.
Subject to the foregoing and applicable law (including, without limitation,
U.S. federal securities laws) Protective Life or its subsidiaries may at any
time and from time to time purchase outstanding Series A Preferred Securities of
any series by tender, in the open market or by private agreement.
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LIQUIDATION DISTRIBUTION
In the event of any voluntary or involuntary liquidation, dissolution or
winding-up of PLC Capital, before any payment or distribution of the assets of
PLC Capital shall be made to or set apart for the holders of any class or
classes of Membership Securities or any series of Preferred Securities ranking
junior to the Series A Preferred Securities upon liquidation, dissolution or
winding-up, the holders of the Series A Preferred Securities shall be entitled
to receive, together with the holders of every other series of Preferred
Securities outstanding, if any, ranking PARI PASSU with the Series A Preferred
Securities as to distribution of assets on liquidation, dissolution or
winding-up of PLC Capital ("Liquidation Parity Securities"), an amount equal, in
the case of the holders of the Series A Preferred Securities, to the aggregate
of the liquidation preference of $25 per Series A Preferred Security and all
accrued and unpaid dividends (whether or not declared) to the date of payment
(the "Liquidation Distribution"), payable in cash. If, upon any such
liquidation, dissolution or winding up, the Liquidation Distribution can be paid
only in part because PLC Capital has insufficient assets available to pay in
full the aggregate Liquidation Distribution and the aggregate maximum
liquidation distributions on the Liquidation Parity Securities, then the amounts
payable directly by PLC Capital on the Series A Preferred Securities and on such
Liquidation Parity Securities shall be paid on a pro rata basis, so that
(i) (x) the aggregate amount paid as the liquidation distribution on
the Series A Preferred Securities bears to (y) the aggregate amount paid as
the liquidation distribution on the Liquidation Parity Securities the same
ratio as
(ii) (x) the aggregate Liquidation Distribution on all Series A
Preferred Securities bears to (y) the aggregate maximum liquidation
distributions on the Liquidation Parity Securities.
Pursuant to the Agreement, PLC Capital will automatically dissolve and be
liquidated (i) when the period fixed for the duration of PLC Capital expires,
(ii) if the Managing Member takes action requiring PLC Capital to be wound-up
and dissolved, (iii) upon the death, retirement, resignation, expulsion,
bankruptcy (as defined in Section 18-304 of the Delaware Limited Liability
Company Act) or dissolution of a holder of Common Securities or the occurrence
of any other event which terminates the continued membership of a Common
Securities holder in PLC Capital, unless, if there is more than one Member
remaining, the business of PLC Capital is continued by the consent of all the
remaining Members within ninety days following the occurrence of any such event;
(iv) upon the unanimous written consent of the Members; (v) upon the entry of a
judicial decree of dissolution under Section 18-802 of the Delaware Limited
Liability Company Act; or (vi) upon the transfer or redemption (other than a
partial redemption) of any of the Common Securities. Under the Guarantee,
Protective Life will covenant that it will not voluntarily dissolve, wind up or
liquidate PLC Capital so long as any Preferred Securities are outstanding
(unless PLC Capital shall be treated as a corporation for U.S. federal income
tax purposes or be subject to more than a DE MINIMIS amount of other taxes,
duties or other governmental charges). See "Description of the Guarantee --
Certain Covenants of the Guarantor". If a limited liability company organized
under the laws of the State of Delaware has any publicly traded limited
liability company interests and is treated as a corporation for U.S. federal
income tax purposes, then, on application by or for a member or the manager of
such limited liability company, the Delaware Court of Chancery shall (x) grant
such relief as may be appropriate to cause the limited liability company not to
have any publicly traded limited liability company interests or (y) decree the
dissolution of the limited liability company.
PERSONAL LIABILITY OF HOLDERS OF COMMON SECURITIES
Protective Life and a special purpose subsidiary of Protective Life, in
their capacities as holders of Common Securities, will be liable for, and will
pay (as an additional capital contribution to PLC Capital) the debts of and
claims against PLC Capital (other than the obligations to holders of Series A
Preferred Securities).
VOTING RIGHTS
Except as provided below and under "Description of the Guarantee --
Amendments and Assignment" and "Description of the Series A Subordinated
Debentures -- Miscellaneous," the holders of the Series A Preferred Securities
will have no voting rights.
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If (i) PLC Capital fails to pay dividends in full on the Series A Preferred
Securities (whether or not funds are legally available therefor) for any period
and as a result dividends on the Series A Preferred Securities shall be in
arrears in an aggregate amount equal to at least 18 full monthly dividend
payments or (ii) Protective Life breaches any of its obligations under the
Series A Subordinated Debentures or any of its obligations under the Guarantee
(as defined in "Description of the Guarantee"), then the holders of the
outstanding Series A Preferred Securities, together with the holders of any
other series of Preferred Securities having the right to vote for the
appointment of a trustee in such event, acting as a single class, will be
entitled, by ordinary resolution passed by the holders of a majority in
liquidation preference (plus all accrued and unpaid dividends) of such Preferred
Securities present in person or by proxy at a separate general meeting of such
holders convened for such purpose (or by written consent), to appoint and
authorize a trustee to enforce PLC Capital's rights as a creditor in respect of
the Series A Subordinated Debentures, to enforce the obligations undertaken by
Protective Life under the Guarantee and to declare and pay dividends to the
extent that funds are held by PLC Capital and legally available therefor. For a
description of rights and obligations under the Series A Subordinated
Debentures, including the right of Protective Life to extend the period to the
next interest payment date to up to 60 months, see "Description of the Series A
Subordinated Debentures." Not later than 30 days after such entitlement arises,
the Managing Member will convene a separate general meeting for the above
purpose. If the Managing Member fails to convene such meeting within such 30-day
period, the holders of 10% in aggregate liquidation preference (plus all accrued
and unpaid dividends) of the outstanding Series A Preferred Securities and such
other Preferred Securities will be entitled to convene such separate general
meeting. The provisions of the L.L.C. Agreement relating to the convening and
conduct of the general meetings of Members (as defined in the L.L.C. Agreement)
will apply with respect to any such separate general meeting. Any trustee so
appointed shall vacate office, subject to the terms of such other Preferred
Securities, if PLC Capital (or Protective Life pursuant to the Guarantee) shall
have paid in full all accrued and unpaid dividends on the Series A Preferred
Securities (if the event that gave rise to such appointment was clause (i) of
this paragraph) or such breach by Protective Life shall have been cured (if the
event that gave rise to such appointment was clause (ii) of this paragraph).
If any resolution is proposed for adoption by the Members of PLC Capital
providing for, or the Managing Member proposes to take, any action that will (w)
amend, alter or repeal the provisions of the L.L.C. Agreement (including the
Actions creating the Series A Preferred Securities) so as to adversely affect
any rights or powers of the Series A Preferred Securities or the holders thereof
or result in the authorization or issuance of any limited liability company
interest in PLC Capital ranking, as to dividends or upon liquidation,
dissolution or winding-up, senior to the Series A Preferred Securities, (x)
result in the liquidation, dissolution or winding-up of PLC Capital, (y) waive
any rights of PLC Capital under the Series A Subordinated Debentures or allow
the Series A Subordinated Debentures to be repurchased or prepaid prior to
, 1999 other than in accordance with the terms of the L.L.C.
Agreement or the terms of the Series A Subordinated Debentures (unless there is
an Event of Default thereunder and except in connection with a redemption
occurring as a result of a Tax Event or an Investment Company Act Event) or (z)
modify (i) Section 2.6 of the L.L.C. Agreement which limits the business and
activity in which PLC Capital may engage, (ii) Section 7.1 of the L.L.C.
Agreement which absolutely prohibits transfers of Common Securities, (iii)
Section 3.3 of the L.L.C. Agreement which requires the holders of the Common
Securities to contribute amounts to PLC Capital such that the Common Securities
represent at all times not less than 21% of all interests in the capital,
income, gain, loss, deduction or credit of PLC Capital or (iv) Section 6.2 of
the L.L.C. Agreement pursuant to which the holders of the Common Securities
agree to be personally liable for all debts of and claims against PLC Capital
(other than payment of dividends on the Preferred Securities), then the holders
of outstanding Series A Preferred Securities (and, in the case of a resolution
described in clause (w) above that would, to a like extent, adversely affect the
rights or powers of any Dividend Parity Securities or any Liquidation Parity
Securities, the holders of such Dividend Parity Securities or such Liquidation
Parity Securities, as the case may be, or, in the case of any resolution
described in clause (x) or (z) above, all Liquidation Parity Securities) will be
entitled to vote together as a class on such resolution (but not on any other
resolution) (i) at a separate meeting of such holders, (ii) at the general
meeting of Members called for the purpose of
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adopting such resolution or (iii) without a meeting but in writing, and such
resolution shall not be effective except with the approval, in the case of
clauses (i) and (ii), of the holders of 66 2/3% in aggregate liquidation
preference (plus all accrued and unpaid dividends) of such outstanding
securities present in person or by proxy at a meeting at which 66 2/3% in
aggregate liquidation preference (plus all accrued and unpaid dividends) of such
securities are so present or, in the case of clause (iii), by the holders of
66 2/3% in aggregate liquidation preference (plus all accrued and unpaid
dividends) of such securities; PROVIDED, however, that no such approval shall be
required under clauses (w) and (x) if the liquidation, dissolution and winding
up of PLC Capital is proposed or initiated upon the initiation of proceedings,
or after proceedings have been initiated, for the liquidation, dissolution or
winding-up of Protective Life.
The rights attached to the Series A Preferred Securities will be deemed not
to be varied by the creation or issue of, and no vote will be required for the
creation of, any further series of Preferred Securities or any limited liability
company interests in PLC Capital ranking as to dividends or upon liquidation
PARI PASSU with or junior to the Series A Preferred Securities.
PLC Capital will cause a notice of any meeting at which holders of the
Series A Preferred Securities are entitled to vote to be mailed to each holder
of record of the Series A Preferred Securities. Each such notice will include a
statement setting forth (i) the date of such meeting, (ii) a description of any
resolution proposed for adoption at such meeting on which such holders are
entitled to vote and (iii) instructions for the delivery of proxies.
Notwithstanding that holders of Series A Preferred Securities are entitled
to vote under any of the circumstances described above, any of the Series A
Preferred Securities and such other Preferred Securities entitled to vote with
such Series A Preferred Securities as a single class outstanding at such time
that are owned by Protective Life or any entity owned 50% or more by Protective
Life, either directly or indirectly, shall not be entitled to vote and shall,
for the purposes of such vote, be treated as if they were not outstanding.
No vote of the holders of the Series A Preferred Securities will be required
for PLC Capital to redeem and cancel Series A Preferred Securities in accordance
with the L.L.C. Agreement (including the Actions).
BOOK-ENTRY-ONLY ISSUANCE; THE DEPOSITORY TRUST COMPANY
The Depository Trust Company ("DTC"), New York, New York will act as
securities depository for the Series A Preferred Securities. The Series A
Preferred Securities will be issued as fully-registered securities registered in
the name of Cede & Co. (DTC's partnership nominee). One or more fully-registered
Series A Preferred Security certificates will be issued, representing in the
aggregate the total number of Series A Preferred Securities, and will be
deposited with DTC.
DTC is a limited-purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
holds securities that its participants ("Participants") deposit with DTC. DTC
also facilitates the settlement among Participants of securities transactions,
such as transfers and pledges, in deposited securities through electronic
computerized book-entry changes in Participants' accounts, thereby eliminating
the need for physical movement of securities certificates. Participants include
securities brokers and dealers, banks, trust companies, clearing corporations
and certain other organizations ("Direct Participants"). DTC is owned by a
number of its Direct Participants and by the New York Stock Exchange, Inc., the
American Stock Exchange, Inc., and the National Association of Securities
Dealers, Inc. Access to the DTC system is also available to others such as
securities brokers and dealers, banks, and trust companies that clear through or
maintain a custodial relationship with a Direct Participant, either directly or
indirectly ("Indirect Participants"). The Rules applicable to DTC and its
participants are on file with the Commission.
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Purchases of Series A Preferred Securities under the DTC system must be made
by or through Direct Participants, who will receive a credit for the Series A
Preferred Securities on DTC's records. The ownership interest of each actual
purchaser of each Series A Preferred Security (a "Beneficial Owner") is in turn
to be recorded on the Direct and Indirect Participants' records. Beneficial
Owners will not receive written confirmation from DTC of their purchase, but
Beneficial Owners are expected to receive written confirmations providing
details of the transactions, as well as periodic statements of their holdings,
from the Direct or Indirect Participant through which the Beneficial Owner
purchased Series A Preferred Securities. Transfers of ownership interests in the
Series A Preferred Securities are to be accomplished by entries made on the
books of Participants acting on behalf of Beneficial Owners. Beneficial Owners
will not receive certificates representing their ownership interests in Series A
Preferred Securities, except in the event that use of the book-entry system for
the Series A Preferred Securities is discontinued.
To facilitate subsequent transfers, all Series A Preferred Securities
deposited by Participants with DTC are registered in the name of DTC's nominee,
Cede & Co. The deposit of Series A Preferred Securities with DTC and their
registration in the name of Cede & Co. effect no change in beneficial ownership.
DTC has no knowledge of the actual Beneficial Owners of the Series A Preferred
Securities; DTC's records reflect only the identity of the Direct Participants
to whose accounts such Series A Preferred Securities are credited, which may or
may not be the Beneficial Owners. The Participants will remain responsible for
keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
Redemption notices shall be sent to Cede & Co. If less than all of the
Series A Preferred Securities are being redeemed, DTC's practice is to determine
by lot the amount of the interest of each Direct Participant in such series to
be redeemed.
Although voting with respect to the Series A Preferred Securities is
limited, in those cases where a vote is required, neither DTC nor Cede & Co.
will consent or vote with respect to Series A Preferred Securities. Under its
usual procedures, DTC mails an Omnibus Proxy to PLC Capital as soon as possible
after the record date. The Omnibus Proxy assigns Cede & Co.'s consent or voting
rights to those Direct Participants to whose accounts the Series A Preferred
Securities are credited on the record date (identified in a listing attached to
the Omnibus Proxy).
Dividend payments on the Series A Preferred Securities will be made to DTC.
DTC's practice is to credit Direct Participants' accounts on the relevant
payable date in accordance with their respective holdings shown on DTC's records
unless DTC has reason to believe that it will not receive payments on such
payable date. Payments by Participants to Beneficial Owners will be governed by
standing instructions and customary practices and will be the responsibility of
such Participant and not of DTC or PLC Capital, subject to any statutory
regulatory requirements as may be in effect from time to time. Payment of
dividends to DTC is the responsibility of PLC Capital, disbursement of such
payments to Direct Participants shall be the responsibility of DTC, and
disbursement of such payments to the Beneficial Owners shall be the
responsibility of Direct and Indirect Participants.
DTC may discontinue providing its services as securities depository with
respect to the Series A Preferred Securities at any time by giving reasonable
notice to PLC Capital. Under such circumstances, in the event that a successor
securities depository is not obtained, Series A Preferred Security certificates
are required to be printed and delivered.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that PLC Capital believes to be reliable, but PLC
Capital takes no responsibility for the accuracy thereof.
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REGISTRAR, TRANSFER AGENT AND PAYING AGENT
AmSouth Bank NA will act as registrar, transfer agent and paying agent for
the Series A Preferred Securities (the "Paying Agent").
Registration of transfers of Series A Preferred Securities will be effected
without charge by or on behalf of PLC Capital, but upon payment (with the giving
of such indemnity as PLC Capital or Protective Life may require) in respect of
any tax or other governmental charges which may be imposed in relation to it.
PLC Capital will not be required to register or cause to be registered the
transfer of Series A Preferred Securities after such Series A Preferred
Securities have been called for redemption.
MISCELLANEOUS
Except as described in this Prospectus Supplement, PLC Capital is not
subject to any mandatory redemption or sinking fund provisions with respect to
the Series A Preferred Securities. Holders of Series A Preferred Securities have
no preemptive rights.
The Common Securities in PLC Capital are owned by the Managing Member and
one of its wholly-owned subsidiaries. The Common Securities are not
transferable. The Managing Member and the other holder of the Common Securities
are required, pursuant to the terms of the L.L.C. Agreement, to contribute to
PLC Capital amounts such that the Common Securities at all times represent at
least 21% of all interests in the capital, income, gain, loss, deduction and
credit of PLC Capital.
DESCRIPTION OF THE GUARANTEE
Set forth below is condensed information concerning the Guarantee which will
be executed and delivered by Protective Life for the benefit of the holders from
time to time of Preferred Securities. The summary contains all material
information concerning the Guarantee but does not purport to be complete.
Reference to provisions of the Guarantee are qualified in their entirety by
reference to the text of the Guarantee, a copy of which has been filed as an
exhibit to the Registration Statement of which this Prospectus Supplement is
part.
GENERAL
Protective Life will irrevocably and unconditionally agree, to the extent
set forth herein, to pay the Guarantee Payments (defined below) (except to the
extent paid by PLC Capital), as and when due, regardless of any defense, right
of set-off or counterclaim which PLC Capital may have or assert. The following
payments to the extent not paid by PLC Capital (the "Guarantee Payments") will
be subject to the Guarantee (without duplication): (i) any accrued and unpaid
dividends that have been theretofore declared on the Series A Preferred
Securities out of funds held by PLC Capital and legally available therefor; (ii)
the redemption price (including all accrued and unpaid dividends whether or not
declared) payable out of funds held by PLC Capital and legally available
therefor with respect to Series A Preferred Securities called for redemption by
PLC Capital; and (iii) in the event of any liquidation, dissolution or
winding-up of PLC Capital, the lesser of (a) the aggregate of the liquidation
preference and all accrued and unpaid dividends (whether or not declared) to the
date of payment and (b) the amount of remaining assets of PLC Capital legally
available to holders of Series A Preferred Securities. In addition, Protective
Life will unconditionally and irrevocably guarantee, in the event of any
exchange by PLC Capital of Series A Preferred Securities for Series A
Subordinated Debentures as described herein, the delivery of a registered global
certificate or certificates representing the proper amount of Series A
Subordinated Debentures to the Depository Trust Company, New York, New York or
such other entity or person as shall at the date of exchange be acting as
securities depository for the Series A Preferred Securities. Protective Life's
obligation to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by Protective Life to the holders of Series A Preferred
Securities or by causing PLC Capital to pay such amounts to such holders.
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CERTAIN COVENANTS OF PROTECTIVE LIFE
In the Guarantee, Protective Life will covenant that, so long as any Series
A Preferred Securities remain outstanding, neither Protective Life, nor any
majority-owned subsidiary of Protective Life, shall declare or pay any dividend
on, or redeem, purchase, acquire or make a liquidation payment with respect to,
any of its capital stock or make any guarantee payments with respect to the
foregoing (other than (i) payments under the Guarantee, (ii) dividends or
guarantee payments to Protective Life or (iii) redemptions or purchases pursuant
to any share purchase rights plan or employee stock plan of Protective Life) if
at such time Protective Life shall be in default with respect to its payment or
other obligations under the Guarantee or there shall have occurred any event
that, with the giving of notice or the lapse of time or both, would constitute
an Event of Default under the Series A Subordinated Debentures.
Pursuant to the Guarantee, Protective Life will agree that, so long as any
Series A Preferred Securities are outstanding, (i) it shall maintain ownership,
directly or indirectly, of 100% of the Common Securities; (ii) in its capacity
as direct and indirect holder of Common Securities, it shall make (or cause to
be made) such contributions to PLC Capital, either in connection with the
purchase of Common Securities or otherwise, so as to cause at least 21% of all
interests in the capital, income, gain, loss, deductions and credit of PLC
Capital to be represented by the Common Securities; (iii) it shall not
voluntarily dissolve, wind-up or liquidate PLC Capital (unless PLC Capital shall
be treated as a corporation for purposes of U.S. federal income tax purposes or
be subject to more than a DE MINIMIS amount of other taxes, duties or other
governmental changes); (iv) it shall timely perform all of its respective duties
under the L.L.C. Agreement; and (v) it shall use its reasonable efforts to cause
PLC Capital to remain a limited liability company or limited partnership and
otherwise continue to be treated as a partnership for U.S. federal income tax
purposes.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not adversely affect the rights
of holders (in which case no vote will be required), the Guarantee may be
changed only with the prior approval of the holders of not less than 66 2/3% in
liquidation preference of the Series A Preferred Securities by agreement in
writing or present in person or by proxy at a separate general meeting and
voting as a single class. All guarantees and agreements contained in the
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of Protective Life and shall inure to the benefit of the holders
of the Series A Preferred Securities. The quorum for any such meeting and the
determination of the Series A Preferred Securities entitled to vote are set
forth under "Description of the Series A Preferred Securities -- Voting Rights"
above.
TERMINATION OF THE GUARANTEE
The Guarantee will terminate and be of no further force and effect with
respect to the Series A Preferred Securities upon full payment of the Redemption
Price (including all accumulated arrears and accruals of unpaid dividends) of
all Series A Preferred Securities, upon full payment of the amounts payable upon
liquidation of PLC Capital or upon exchange of all Series A Preferred Securities
for Series A Subordinated Debentures as described above. The Guarantee will
continue to be effective or will be reinstated, as the case may be, if at any
time any holder of the Series A Preferred Securities must restore payment of any
sums paid under the Series A Preferred Securities or the Guarantee.
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STATUS OF THE GUARANTEE
The Guarantee will rank PARI PASSU with the Subordinated Debentures and,
accordingly, will be subordinate and junior in right of payment to all Senior
Indebtedness as such term is defined in the Subordinated Indenture. See
"Description of Debt Securities of Protective Life -- Subordination under the
Subordinated Indenture" in the accompanying Prospectus.
The Guarantee will constitute a guarantee of payment and not of collection.
A holder of Series A Preferred Securities may enforce the Guarantee directly
against Protective Life, and Protective Life will waive any right or remedy to
require that any action be brought against PLC Capital or any other person or
entity before proceeding against Protective Life. The Guarantee will not be
discharged except by payment of the Guarantee Payments in full to the extent not
paid by PLC Capital and by complete performance of all obligations under the
Guarantee.
GOVERNING LAW
The Guarantee will be governed and construed in accordance with the laws of
the State of New York.
DESCRIPTION OF THE SERIES A SUBORDINATED DEBENTURES
Set forth below is condensed information concerning the Series A
Subordinated Debentures that will evidence the loans to be made by PLC Capital
to Protective Life of the proceeds of (i) the Series A Preferred Securities and
(ii) the Common Securities and related capital contributions ("Common Securities
Payments"). Series A Subordinated Debentures will be issued under the
subordinated indenture, dated , 1994, between Protective Life and
, as Trustee (the "Subordinated Indenture"). See "Description of
Debt Securities of Protective Life" in the accompanying Prospectus and the
description below for a summary of the material terms of the Subordinated
Indenture. References to provisions of the Subordinated Indenture are qualified
in their entirety by reference to the text of the Subordinated Indenture, a form
of which has been filed as an exhibit to the Registration Statement of which
this Prospectus Supplement forms a part.
GENERAL
Pursuant to the Subordinated Indenture, Protective Life will issue Series A
Subordinated Debentures to PLC Capital in an aggregate principal amount of
$ , such amount being the sum of (i) the aggregate stated liquidation
preference of the Series A Preferred Securities issued and sold by PLC Capital
and (ii) the Common Securities Payments. [In the event that the Underwriters'
over-allotment option is exercised, Protective Life will agree to issue
additional Series A Subordinated Debentures to PLC Capital equal to the
aggregate stated liquidation preference of the Series A Preferred Securities so
sold upon such exercise plus the related aggregate additional cash contributions
to PLC Capital by the holders of the Common Securities. If the over-allotment
option is exercised in full, the aggregate principal amount of such additional
Series A Subordinated Debentures will equal $ .]
The entire principal amount of the Series A Subordinated Debentures shall
become due and payable (together with any accrued and unpaid interest thereon)
including Additional Interest (as hereinafter defined), if any on April , 2024
(the "Maturity Date"), subject to relending under conditions described under
"Terms of the Series A Preferred Securities -- Mandatory Redemption upon
Repayment of Series A Subordinated Debentures at Maturity." Upon exchange of the
Series A Preferred Securities for Series A Subordinated Debentures, (i) the
Series A Subordinated Debentures will no longer be subject to mandatory
prepayment upon the dissolution, winding up or liquidation of PLC Capital, (ii)
the Series A Subordinated Debentures will not be subject to an election by
Protective Life to exchange Series A Subordinated Debentures for new debentures
or to repay the Series A Subordinated Debentures and re-borrow the proceeds from
such repayment, (iii) Protective Life will use its best efforts to have the
Series A Subordinated Debentures listed on the same exchange on which the Series
A Preferred Securities are listed, (iv) the Subordinated Indenture or Series A
Subordinated Debentures may, thereafter, be modified or amended with the consent
of not less than 66 2/3% in principal amount of the Series A Subordinated
Debentures at the time outstanding, PROVIDED, however, that no such modification
or amendment may, without the consent of the holder of each Series A
Subordinated Debenture
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affected thereby, (a) extend the stated maturity of the principal of any Series
A Subordinated Debenture, or reduce the principal amount thereof or reduce the
rate or extend the time of payment of interest thereon, or reduce any amount
payable on redemption thereof or change the currency in which the principal
thereof or interest thereon is payable or impair the right to institute suit for
the enforcement of any payment on any Series A Subordinated Debenture when due
or (b) reduce the aforesaid principal amount of Series A Subordinated Debentures
of any series the consent of the holders of which is required for any such
modification and (v) Protective Life's obligation to pay Additional Interest
(other than Additional Interest, if any, accrued and unpaid to such date of
exchange) shall cease.
MANDATORY PREPAYMENT
If PLC Capital redeems Series A Preferred Securities in cash for the
Redemption Price in accordance with the terms thereof, the Series A Subordinated
Debentures will become due and payable in a principal amount equal to the
aggregate stated liquidation preference of the Series A Preferred Securities so
redeemed (together with accrued interest on such principal amount to the date of
redemption). Any payment pursuant to this provision shall be made prior to 12:00
noon, New York time, on the date of such redemption or at such other time on
such earlier date as PLC Capital and Protective Life shall agree.
OPTIONAL PREPAYMENT
Protective Life shall have the right to prepay the Series A Subordinated
Debentures, without premium or penalty, in whole or in part (together with any
accrued but unpaid interest, including Additional Interest, if any, on the
portion being prepaid) at any time on or after , 1999.
INTEREST
The Series A Subordinated Debentures shall bear interest at an annual rate
of % from , 1994 until maturity. Such interest shall be payable on
the last day of each calendar month of each year, commencing April , 1994.
Interest will be computed on the basis of twelve 30-day months and a 360-day
year and, for any interest period that is shorter than a full calendar month,
will be calculated on the basis of the actual number of days elapsed in such
period. If any date on which interest is payable on the Series A Subordinated
Debentures is not a Business Day, then payment of the interest due on such date
will be made on the next succeeding Business Day (and without any interest or
other payment in respect of any such delay), except that, if such Business Day
is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date; PROVIDED, however, that Protective Life shall have the
right at any time or times during the term of the Series A Subordinated
Debentures, so long as Protective Life is not in default in the payment of
interest on the Series A Subordinated Debentures, to extend the interest payment
period to the next interest payment date by a period (not to exceed 60 months
from the last date on which interest was paid in full) at the end of which
Protective Life shall pay all interest then accrued and unpaid (together with
interest thereon at the rate specified for the Series A Subordinated Debentures
to the extent permitted by applicable law); and PROVIDED FURTHER that, during
any such extended interest period, or at any time during which there is an
uncured Default or Event of Default under the Series A Subordinated Debentures,
Protective Life shall not pay any dividends on, or redeem, purchase, acquire or
make a liquidation payment with respect to, any of its shares of capital stock
or make any guarantee payments with respect to the foregoing (other than
redemptions or purchases pursuant to any share purchase rights plan or employee
stock plan of Protective Life and payments under any guarantee of the Series A
Preferred Securities or any other series of Preferred Securities ranking PARI
PASSU with the Series A Preferred Securities). Protective Life shall give PLC
Capital not less than five Business Days' prior notice of its selection of such
longer interest payment period. The term "Business Day" shall mean each day, is
on which banks in The City of New York are open for business.
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ADDITIONAL INTEREST
If at any time following the issuance of the Series A Subordinated
Debentures, PLC Capital shall be required to pay, with respect to its income
derived from the interest payments on the Series A Subordinated Debentures, any
amounts, for or on account of any taxes, duties or governmental charges of
whatever nature imposed by the State of Delaware or any other taxing authority,
then, in any such case, Protective Life will pay as interest such additional
amounts ("Additional Interest") as may be necessary in order that the net
amounts received and retained by PLC Capital after the payment of such taxes,
duties or governmental charges shall result in PLC Capital's having such funds
as it would have had in the absence of the payment of such taxes, duties or
governmental charges.
METHOD AND DATE OF PAYMENT
Each payment by Protective Life of principal and interest (including
Additional Interest, if any) on the Series A Subordinated Debentures shall be
made to PLC Capital in United States Dollars at such place and to such account
as may be designated by PLC Capital.
SET-OFF
Notwithstanding anything to the contrary in the Subordinated Indenture or
the Series A Subordinated Debentures, Protective Life shall have the right to
set-off any payment it is otherwise required to make thereunder with and to the
extent Protective Life has theretofore made, or is concurrently on the date of
such payment making, a payment under the Guarantee.
SUBORDINATION
The Subordinated Indenture will provide that Protective Life and PLC Capital
covenant and agree that each of the Series A Subordinated Debentures is
subordinate and junior in right of payment to all Senior Indebtedness as
provided in the Subordinated Indenture. The Subordinated Indenture defines the
term "Senior Indebtedness" as the principal, premium, if any, and interest on
(i) all indebtedness of Protective Life, whether outstanding on the date of the
Series A Subordinated Debentures or thereafter created, incurred or assumed,
which is for money borrowed, or evidenced by a note or similar instrument given
in connection with the acquisition of any business, properties or assets,
including securities, (ii) any indebtedness of others of the kinds described in
the preceding clause (i) for the payment of which Protective Life is responsible
or liable as guarantor or otherwise and (iii) amendments, renewals, extensions
and refundings of any such indebtedness, unless in any instrument or instruments
evidencing or securing such indebtedness or pursuant to which the same is
outstanding, or in any such amendment, renewal, extension or refunding, it is
expressly provided that such indebtedness is not superior in right of payment to
the Series A Subordinated Debentures. The Senior Indebtedness shall continue to
be Senior Indebtedness and entitled to the benefits of the subordination
provisions irrespective of any amendment, modification or waiver of any term of
the Senior Indebtedness or extension or renewal of the Senior Indebtedness. For
a more detailed description of the subordination provisions set forth in the
Subordinated Indenture, see "Description of Debt Securities of Protective Life
- -- Subordination under the Subordinated Indenture" in the accompanying
Prospectus.
COVENANTS
In the Series A Subordinated Debentures, Protective Life will agree that, so
long as the Series A Preferred Securities are outstanding, (i) it shall not
declare or pay any dividend on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock, or make any
guarantee payments with respect to the foregoing (other than redemptions or
purchases pursuant to any share purchase rights plan or employee stock plan of
Protective Life and payments pursuant to any guarantee of the Series A Preferred
Securities or any other series of Preferred Securities ranking PARI PASSU with
the Series A Preferred Securities) if at such time (x) there shall have occurred
any Event of Default or event (a "Default") that, with the giving of notice or
the lapse of time or both, would constitute an Event of Default or (y)
Protective Life shall be in default with respect to its payment or other
obligations under any guarantee of the Series A Preferred Securities, (ii) it
shall maintain ownership, directly or indirectly, of all of the Common
Securities, (iii) in its capacity as a direct and indirect holder of Common
Securities, it shall make (or cause to be made) such contributions to PLC
Capital so as to cause at least 21% of all
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interests in the capital, income, gain, loss, deduction and credit of PLC
Capital to be represented by the Common Securities, (iv) it shall timely perform
all of its duties as Managing Member of PLC Capital, and (v) it shall use its
reasonable efforts to cause PLC Capital to remain a limited liability company or
limited partnership and otherwise continue to be treated as a partnership for
U.S. federal income tax purposes.
Protective Life also will agree (i) that its obligations under the Series A
Subordinated Debentures will also be for the benefit of the holders from time to
time of the Series A Preferred Securities and that such holders will be entitled
to enforce the Series A Subordinated Debentures directly against Protective
Life, and (ii) not to consolidate with or merge with another entity or permit
another entity to consolidate with or merge into it unless (a) at such time no
Event of Default has occurred and is continuing, or would occur as a result of
such merger and (b) Protective Life is the survivor of such merger or the entity
formed by or resulting from such merger shall expressly assume payment of the
principal of and premium, if any, and interest on the Series A Subordinated
Debentures.
EVENTS OF DEFAULT
If one or more of the following events (each an "Event of Default") shall
occur and be continuing:
(a) default in the payment of interest on the Series A Subordinated
Debentures, including any Additional Interest in respect thereof, when due
that continues for 30 days (whether by virtue of the subordination
provisions of the Series A Subordinated Debentures or otherwise); PROVIDED,
however, that a valid extension of the interest payment period by Protective
Life shall not constitute a default in the payment of interest for this
purpose (see "Interest" above);
(b) default in the payment of principal on the Series A Subordinated
Debentures when due (whether by virtue of the subordination provisions of
the Series A Subordinated Debentures or otherwise);
(c) the bankruptcy, insolvency or liquidation of Protective Life; or
(d) the breach by Protective Life of any of its covenants contained in
the Series A Subordinated Debentures continued for 90 days after notice to
Protective Life from any holder of the Series A Preferred Securities;
then (i) in the case of clauses (a), (b) and (d), and at any time thereafter
during the continuance of such event, PLC Capital will have the right to declare
the principal of and the interest on the Series A Subordinated Debentures
(including any interest subject to an extension of the interest payment period)
and any other amounts payable on the Series A Subordinated Debentures to be
forthwith due and payable, and (ii) in the case of clause (c), the principal of
and interest on the Series A Subordinated Debentures (including any interest
subject to an extension of the interest payment period) and any other amounts
payable on the Series A Subordinated Debentures shall automatically become due
and payable, whereupon in either case the Series A Subordinated Debentures and
any other amounts payable in respect of the Series A Subordinated Debentures
under the Series A Subordinated Debentures or the Subordinated Indenture shall
be forthwith due and payable without presentment, demand, protest or other
notice of any kind, all of which will be waived by Protective Life, and PLC
Capital will have the right to enforce its other rights as a defaulted creditor
with respect to the Series A Subordinated Debentures. Under the terms of the
Series A Preferred Securities, the holders of outstanding Series A Preferred
Securities will have the rights referred to under "Terms of the Series A
Preferred Securities -- Voting Rights", including the right to appoint a
trustee, which trustee shall be authorized to exercise PLC Capital's rights to
accelerate the principal amount of the Series A Subordinated Debentures and to
enforce PLC Capital's other rights under the Series A Subordinated Debentures.
MISCELLANEOUS
Protective Life shall have the right at all times to assign any of its
rights or obligations under the Series A Subordinated Debentures to a direct or
indirect wholly-owned subsidiary of Protective Life; PROVIDED, HOWEVER, that, in
the event of any such assignment, Protective Life shall remain jointly and
severally liable for all such obligations. PLC Capital may not assign any of its
rights under the Series A
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Subordinated Debentures without the prior written consent of Protective Life.
Subject to the foregoing, the Series A Subordinated Debentures shall be binding
upon and inure to the benefit of Protective Life and PLC Capital and their
respective successors and assigns. Any assignment by Protective Life or PLC
Capital in contravention of such provisions will be null and void.
The Series A Subordinated Debentures and the Subordinated Indenture will be
governed by and construed in accordance with the internal laws of the State of
New York.
The Series A Subordinated Debentures may be amended by mutual consent of the
parties in the manner the parties shall agree; PROVIDED, HOWEVER, that, so long
as any of the Series A Preferred Securities remain outstanding, no such
amendment shall be made that adversely affects the rights of the holders of the
Series A Preferred Securities, no termination of the Series A Subordinated
Debentures shall occur, and no Event of Default or compliance with any covenant
under the Series A Subordinated Debentures may be waived by PLC Capital, without
the prior approval of the holders of at least 66 2/3% in liquidation preference
of all Series A Preferred Securities then outstanding, in writing or at a duly
constituted meeting of such holders.
CERTAIN FEDERAL TAX CONSIDERATIONS
RELATING TO THE SERIES A PREFERRED SECURITIES
The following is a summary, based on the advice of Debevoise & Plimpton,
special counsel to Protective Life and PLC Capital, of certain U.S. federal
income tax considerations relevant to the purchase, ownership and disposition of
the Series A Preferred Securities by a beneficial owner acquiring Series A
Preferred Securities on their original issue at the original offering price who
is (i) an individual citizen or a resident of the United States, (ii) a
corporation or partnership created or organized in or under the laws of the
United States or any state thereof or the District of Columbia or (iii) an
estate or trust subject to United States federal income taxation without regard
to the source of its income (a "United States Person"). This summary does not
address potential tax consequences to a purchaser that is not a United States
Person. Neither PLC Capital nor Protective Life is required to pay any
additional amounts with respect to payments of dividends on the Series A
Preferred Securities if any withholding or similar taxes are imposed on any such
dividends; accordingly, any such taxes would reduce the amounts that would be
received by any beneficial owner that is not a United States Person. PROSPECTIVE
PURCHASERS OF THE SERIES A PREFERRED SECURITIES THAT ARE NOT UNITED STATES
PERSONS ARE URGED TO CONSULT THEIR TAX ADVISORS.
This summary does not purport to address all potential tax consequences that
may be applicable to a beneficial owner of a Series A Preferred Security, and is
not intended to be wholly applicable to all categories of investors (including
insurance companies, banks, tax-exempt organizations, dealers in securities and
persons acquiring Series A Preferred Securities as a straddle or hedge or as
part of a "conversion transaction") or persons whose functional currency is not
the United States dollar. This discussion is based upon the United States
Internal Revenue Code of 1986, as amended (the "Code"), Treasury Regulations
(including proposed Treasury Regulations), Internal Revenue Service rulings and
pronouncements and judicial decisions now in effect, all of which are subject to
change at any time. Such changes may be applied retroactively in a manner that
could cause tax consequences to vary substantially from the consequences
described below, possibly adversely affecting a beneficial owner of a Series A
Preferred Security. These authorities are subject to various interpretations and
it is therefore possible that the federal income tax treatment of the Series A
Preferred Securities may differ from the treatment described below.
PROSPECTIVE PURCHASERS OF SERIES A PREFERRED SECURITIES ARE ADVISED TO
CONSULT THEIR OWN TAX ADVISORS AS TO THE FEDERAL TAX CONSEQUENCES OF THE
PURCHASE, OWNERSHIP AND DISPOSITION OF SERIES A PREFERRED SECURITIES, AS WELL AS
THE EFFECT OF ANY STATE, LOCAL OR FOREIGN TAX LAWS.
S-23
<PAGE>
INCOME FROM SERIES A PREFERRED SECURITIES
In the opinion of Debevoise & Plimpton, PLC Capital will be treated as a
partnership for federal income tax purposes. Each holder of a Series A Preferred
Security (a "Securityholder") will be required to include in gross income its
distributive share of PLC Capital's net income. Such income will generally not
exceed dividends received on a Series A Preferred Security, except in limited
circumstances as described under "Potential Extension of Payment Period." Any
amount so included in a Securityholder's gross income will increase its tax
basis in the Series A Preferred Securities, and the amount of cash dividends to
the Securityholder will reduce its tax basis in the Series A Preferred
Securities. No portion of such income will be eligible for the dividends
received deduction.
PLC Capital does not presently intend to make an election under section 754
of the Code. As a result, a subsequent purchaser of Series A Preferred
Securities may not be permitted to adjust its taxable income from PLC Capital to
reflect any difference between its purchase price for the Series A Preferred
Securities and PLC Capital's underlying tax basis in its assets.
SALE OR REDEMPTION OF SERIES A PREFERRED SECURITIES
Gain or loss will be recognized on a sale of Series A Preferred Securities
(including a distribution of cash in redemption of all of a Securityholder's
Series A Preferred Securities) equal to the difference between the amount
realized and the Securityholder's tax basis for the Series A Preferred
Securities sold or so redeemed. In the case of a cash distribution in partial
redemption of a Securityholder's Series A Preferred Securities, no loss will be
recognized, the Securityholder's tax basis in the Series A Preferred Securities
will be reduced by the amount of the distribution, and the Securityholder will
recognize gain to the extent, if any, that the amount of the distribution
exceeds such Securityholder's tax basis in the Series A Preferred Securities.
Gain or loss recognized by a Securityholder on the sale or exchange of a Series
A Preferred Security held for more than one year will generally be taxable as
long-term capital gain or loss. See "--Market Discount and Premium" below.
POTENTIAL EXTENSION OF PAYMENT PERIOD
Under the terms of the Series A Subordinated Debentures, Protective Life may
be permitted to extend the interest payment period to up to 60 months. In the
event that Protective Life exercises this right, Protective Life may not declare
dividends on any share of its preferred or common stock, and therefore, the
extension of a payment period is, in the view of Protective Life and PLC
Capital, remote. In the event that the payment period is extended, PLC Capital
will continue to accrue income, equal to the amount of the interest payment due
at the end of the extended payment period over the length of the extended
payment period.
Accrued income for any month will be allocated, but not distributed, to
Securityholders of record on the record date for dividends in respect of such
month (whether or not dividends are actually paid). As a result, Securityholders
of record during an extended interest payment period will include amounts in
respect of interest in gross income in advance of the receipt of cash. The tax
basis of a Series A Preferred Security will be increased by any such amounts
that are included in income without a receipt of cash, and will be decreased
when such cash is subsequently received from PLC Capital.
REDEMPTION OF SERIES A PREFERRED SECURITIES IN EXCHANGE FOR SERIES A
SUBORDINATED DEBENTURES
Under certain circumstances relating to changes in law, as described under
"Description of the Series A Preferred Securities -- Optional Redemption," PLC
Capital may distribute the Series A Subordinated Debentures (or beneficial
interests therein) in exchange for, and liquidation of, the Series A Preferred
Securities. Except as described below, such exchange would be treated as a
non-taxable exchange to a Securityholder and such Securityholder would have an
aggregate tax basis in the Series A Subordinated Debentures received equal to
such Securityholder's aggregate tax basis in its Series A Preferred Securities.
A Securityholder's holding period for the Series A Subordinated Debentures so
received will include the period for which the Series A Preferred Securities
were held by such Securityholder. If the exchange occurs following a
determination that PLC Capital is subject to federal income tax with respect to
interest received on the Series A Subordinated Debentures, the exchange
generally
S-24
<PAGE>
will be taxable to a Securityholder, who will recognize gain or loss measured by
the difference between such Securityholder's basis in its Series A Preferred
Securities and the value of the Series A Subordinated Debentures received in
exchange therefor. In such a case, the holding period of a Securityholder for
the Series A Subordinated Debentures received in the exchange will not include
the period in which the Series A Preferred Securities were held. After the
exchange of Series A Preferred Securities for Series A Subordinated Debentures,
holders of the Series A Subordinated Debentures (including those otherwise using
a cash basis method of accounting) will be required to include interest on the
Series A Subordinated Debentures as it accrues, based on a constant yield
method, before the receipt of payments of interest. Such holder's tax basis in
the Series A Subordinated Debentures will be increased by accrued interest
previously included in income by such holder and reduced by the payment of such
interest. See "--Market Discount and Premium".
MARKET DISCOUNT AND PREMIUM
Securityholders (other than initial purchasers who acquire Series A
Preferred Securities at their original offering price) may be considered to have
market discount, acquisition premium or amortizable bond premium under certain
circumstances and are advised to consult their own tax advisors.
INFORMATION RETURNS
The Managing Member will furnish each Securityholder with a Schedule K-1
setting forth such Securityholder's allocable share of income within 90 days
after the close of PLC Capital's taxable year. In preparing this information,
the Managing Member will use various accounting and reporting conventions to
determine a Securityholder's allocable share of income. See "-- Potential
Extension of Payment Period". If such conventions were successfully challenged
by the Internal Revenue Service, the distributive share of PLC Capital's income
allocable to Series A Preferred Securities in respect of a month in which such
Series A Preferred Securities are sold may be allocated between the seller and
purchaser on some other basis. Any amount so allocated to the Securityholder,
whether as seller or purchaser, would be includible in the holder's income and
would increase such Securityholder's tax basis in its Series A Preferred
Securities.
Any person who holds Series A Preferred Securities as a nominee for another
person is required to furnish to PLC Capital (a) the name, address and taxpayer
identification number of the beneficial owners and the nominee; (b) whether the
beneficial owner is (i) a person that is not a United States Person, (ii) a
foreign government, an international organization or any wholly-owned agency or
instrumentality of either of the foregoing, or (iii) a tax-exempt entity; (c)
the amount and description of Series A Preferred Securities held, acquired or
transferred for the beneficial owners; and (d) certain information including the
dates of acquisitions and transfers, means of acquisitions and transfers, and
acquisition cost for purchases, as well as the amount of net proceeds from
sales. Brokers and financial institutions are required to furnish additional
information, including whether they are a United States Person and certain
information on Series A Preferred Securities they acquire, hold or transfer for
their own account. A penalty of $50 per failure (up to a maximum of $100,000 per
calendar year) is imposed by the Code for failure to report such information to
PLC Capital. The nominee is required to supply the beneficial owner of the
Series A Preferred Securities with the information furnished to PLC Capital.
ERISA MATTERS
PLC Capital, Protective Life and other affiliates of PLC Capital or
Protective Life may each be considered a "party in interest" (within the meaning
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) or
a "disqualified person" (within the meaning of Section 4975 of the Code) with
respect to many employee benefit plans ("Plans") that are subject to ERISA. The
purchase and/or holding of Series A Preferred Securities or Series A
Subordinated Debentures by a Plan that is subject to the fiduciary
responsibility provisions of ERISA or the prohibited transaction provisions of
Section 4975 of the Code (including individual retirement arrangements and other
plans described in Section 4975(e)(1) of the Code) and with respect to which PLC
Capital, Protective Life or any other affiliate of PLC Capital or Protective
Life is a service provider (or otherwise is a party in interest or a
S-25
<PAGE>
disqualified person) may constitute or result in a prohibited transaction under
ERISA or Section 4975 of the Code, unless such Series A Preferred Securities or
Series A Subordinated Debentures, are acquired pursuant to and in accordance
with an applicable exemption, such as Prohibited Transaction Class Exemption
("PTCE") 84-14 (an exemption for certain transactions determined by an
independent qualified professional asset manager), PTCE 91-38 (an exemption for
certain transactions involving bank collective investment funds) or PTCE 90-1
(an exemption for certain transactions involving insurance company pooled
separate accounts). Any pension or other employee benefit plan proposing to
acquire any Series A Preferred Securities should consult with its counsel.
UNDERWRITING
Subject to the terms and conditions set forth in the Underwriting Agreement,
PLC Capital has agreed to sell to each of the Underwriters named below, and each
of the Underwriters, for whom Goldman, Sachs & Co., Dean Witter Reynolds Inc.,
Kidder, Peabody & Co. Incorporated and The Robinson-Humphrey Company, Inc. (the
"Representatives") are acting as representatives, has severally agreed to
purchase from PLC Capital, the respective number of Series A Preferred
Securities set forth opposite its name.
<TABLE>
<CAPTION>
NUMBER OF
SERIES A PREFERRED
UNDERWRITER SECURITIES
- ---------------------------------------------------------------------------------- --------------------
<S> <C>
Goldman, Sachs & Co...............................................................
Dean Witter Reynolds Inc..........................................................
Kidder, Peabody & Co., Incorporated...............................................
The Robinson-Humphrey Company, Inc................................................
--------
Total.....................................................................
--------
--------
</TABLE>
The Underwriters have advised PLC Capital that they propose to offer the
Series A Preferred Securities to the public initially at the offering price set
forth on the cover page of this Prospectus Supplement, and to certain dealers at
such price less a concession not in excess of $[ ] per Series A Preferred
Security. The Underwriters may allow and such dealers may reallow a concession
not in excess of $[ ] per Series A Preferred Security to certain other dealers.
After the initial public offering, the public offering price and other selling
terms may from time to time be varied by the Representatives.
The Underwriting Agreement provides that the obligations of the Underwriters
are subject to certain conditions precedent and that the Underwriters will
purchase all the Series A Preferred Securities if any are purchased.
[PLC Capital has granted to the Underwriters an option exercisable during a
30-day period after the date of this Prospectus Supplement to purchase, at the
initial public offering price (with an additional underwriting commission), up
to [ ] additional Series A Preferred Securities for the sole purpose of
covering over-allotments, if any. To the extent that the Underwriters exercise
such option, each Underwriter will be committed, subject to certain conditions,
to purchase approximately the same percentage thereof that the number of Series
A Preferred Securities to be purchased by each of them, as shown in the
foregoing table, bears to the Series A Preferred Securities offered.]
PLC Capital and Protective Life have agreed to indemnify the Underwriters
against, and to contribute to losses arising out of, certain liabilities,
including liabilities under the Securities Act of 1933, as amended.
S-26
<PAGE>
Prior to this offering, there has been no market for the Series A Preferred
Securities. Application will be made to list the Series A Preferred Securities
on the NYSE. In order to meet one of the requirements for listing the Series A
Preferred Securities on the NYSE, the Underwriters will undertake to sell Series
A Preferred Securities to at least 400 beneficial holders and upon the initial
issuance of the Series A Preferred Securities and that there shall be a minimum
of 1,000,000 Series A Preferred Securities outstanding having a minimum
aggregate fair market value of $4,000,000. PLC Capital will use its best efforts
to maintain the listing of the Series A Preferred Securities on the NYSE or
another national securities exchange. Nevertheless, no assurances can be given
as to the liquidity of the market for the Series A Preferred Securities.
LEGAL OPINIONS
Tax matters described under "Certain Federal Tax Considerations Relating to
the Series A Preferred Securities" in this Prospectus Supplement have been
passed upon by Debevoise & Plimpton. In rendering its opinion, Debevoise &
Plimpton has relied upon an opinion of Richards, Layton & Finger, P.A. as to
certain matters of Delaware law.
S-27
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS IN CONNECTION WITH THE
OFFER HEREUNDER AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST
NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY PROTECTIVE LIFE CORPORATION, PLC
CAPITAL L.L.C. OR THE UNDERWRITERS. THIS PROSPECTUS SUPPLEMENT AND THE
PROSPECTUS DO NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO
BUY THE SERIES A PREFERRED SECURITIES IN ANY JURISDICTION WHERE, OR TO ANY
PERSON TO WHOM, IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE
DELIVERY OF THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS NOR ANY SALE MADE
HEREUNDER AND THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION
THAT THERE HAS BEEN NO CHANGE IN THE FACTS SET FORTH IN THIS PROSPECTUS
SUPPLEMENT OR THE PROSPECTUS OR IN THE AFFAIRS OF PROTECTIVE LIFE CORPORATION OR
PLC CAPITAL L.L.C. SINCE THE DATE HEREOF.
----------------
TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
PLC Capital L.L.C.............................. S-3
Protective Life Corporation.................... S-3
Certain Investment Considerations.............. S-5
Capitalization of Protective Life.............. S-6
Use of Proceeds................................ S-7
Summary Consolidated Financial Data............ S-7
Terms of the Series A Preferred Securities..... S-8
Description of the Guarantee................... S-17
Description of the Series A Subordinated
Debentures................................... S-19
Certain Federal Tax Considerations Relating to
the Series A Preferred Securities............ S-23
ERISA Matters.................................. S-25
Underwriting................................... S-26
Legal Opinions................................. S-27
PROSPECTUS
Available Information.......................... 2
Incorporation of Certain Documents by
Reference.................................... 2
Protective Life Corporation.................... 3
PLC Capital L.L.C. ............................ 3
Use of Proceeds................................ 4
Ratio of Earnings to Fixed Charges............. 4
Description of Debt Securities of Protective
Life......................................... 4
Description of Capital Stock of Protective
Life......................................... 12
Certain Other Provisions of Protective Life's
Restated Certificate of Incorporation........ 13
Description of Certain Contractual Back-Up
Obligations of Protective Life............... 14
Plan of Distribution........................... 16
Legal Opinions................................. 17
Experts........................................ 18
</TABLE>
PREFERRED SECURITIES
PLC CAPITAL L.L.C.
GUARANTEED TO THE EXTENT SET FORTH
HEREIN BY
PROTECTIVE LIFE CORPORATION
% CUMULATIVE
MONTHLY INCOME PREFERRED SECURITIES,
SERIES A ("MIPS")
-----------
PROSPECTUS SUPPLEMENT
-----------
GOLDMAN, SACHS & CO.
DEAN WITTER REYNOLDS INC.
KIDDER, PEABODY & CO.
INCORPORATED
THE ROBINSON-HUMPHREY
COMPANY, INC.
REPRESENTATIVES OF THE UNDERWRITERS
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 25, 1994
REGISTRATION NO.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
<TABLE>
<S> <C>
PROTECTIVE LIFE
CORPORATION PLC CAPITAL L.L.C.
(Exact name of registrant as (Exact name of registrant as
specified in its charter) specified in its charter)
DELAWARE DELAWARE
(State or other jurisdiction (State or other jurisdiction of
of incorporation or incorporation or organization)
organization)
95-2492236 63-1114346
(I.R.S. Employer (I.R.S. Employer Identification
Identification No.) No.)
</TABLE>
C/O DEBORAH J. LONG, ESQ.
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
PROTECTIVE LIFE CORPORATION
P.O. BOX 2606
BIRMINGHAM, ALABAMA 35202
(205) 879-9230
(Address, including zip code and telephone number, including area
code, of registrants' principal executive offices and agent for service)
------------------------------
COPIES TO:
<TABLE>
<S> <C>
MICHAEL W. BLAIR, ESQ. ALAN J. SINSHEIMER, ESQ.
DEBEVOISE & PLIMPTON SULLIVAN & CROMWELL
875 THIRD AVENUE 125 BROAD STREET
NEW YORK, NEW YORK 10022 NEW YORK, NEW YORK 10004
</TABLE>
--------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time as determined by market conditions, after the effective date of this
registration statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
--------------------------
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. /X/
--------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED PER UNIT OFFERING PRICE (1) REGISTRATION FEE
<S> <C> <C> <C> <C>
Protective Life Corporation Debt Securities
(2); Protective Life Corporation Preferred
Stock; PLC Capital L.L.C. Cumulative
Monthly Income Preferred Securities;
Protective Life Corporation Guarantee
(1)........................................ (3) (3) $175,000,000 $60,345(3)
<FN>
(1) In United States dollars or the equivalent thereof (based on the applicable
exchange rate at the time of sale), if Protective Life Corporation Debt
Securities are issued with principal amounts denominated in one or more
foreign or composite currencies as shall be designated by Protective Life
Corporation. Such amount represents the maximum aggregate offering price to
the public of the securities offered hereby. No separate consideration will
be received for any Protective Life Corporation Guarantee.
(2) Includes subordinated debentures which may be issued by Protective Life
Corporation to evidence the loan by PLC Capital L.L.C. to Protective Life
Corporation of any proceeds from (i) the offer and sale of the PLC Capital
L.L.C. Cumulative Monthly Income Preferred Securities and (ii) other
capital contributions to PLC Capital L.L.C. No separate consideration will
be received for the subordinated debentures.
(3) The aggregate amount to be registered and the aggregate offering price per
unit have been omitted pursuant to Securities Act Release No. 6964. The
registration fee has been calculated in accordance with Rule 457(o) under
the Securities Act of 1933.
</TABLE>
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
SUBJECT TO COMPLETION, DATED MARCH 25, 1994
PROSPECTUS
U.S. $175,000,000
PROTECTIVE LIFE CORPORATION
DEBT SECURITIES
PREFERRED STOCK
PLC CAPITAL L.L.C.
CUMULATIVE MONTHLY INCOME PREFERRED SECURITIES ("MIPS"*)
GUARANTEED TO THE EXTENT SET FORTH HEREIN BY
PROTECTIVE LIFE CORPORATION
---------------
Protective Life Corporation, a Delaware corporation ("Protective Life"), may
from time to time offer (a) its debt securities, consisting of debentures, notes
and/or other evidences of indebtedness representing unsecured obligations of
Protective Life (the "Debt Securities") and (b) shares of preferred stock, par
value $1.00 per share ("Preferred Stock"), in each case in one or more series
and in amounts, at prices and on terms to be determined at the time of offering.
PLC Capital L.L.C., a limited liability company formed under the laws of the
State of Delaware ("PLC Capital"), may from time to time offer, in one or more
series, its Cumulative Monthly Income Preferred Securities (the "Preferred
Securities") representing preferred limited liability company interests in PLC
Capital. PLC Capital was formed by Protective Life solely to issue Preferred
Securities and common limited liability company interests ("Common Securities")
and loan the proceeds thereof to Protective Life. Accordingly, the proceeds of
an offering of Preferred Securities, together with all capital contributions
made in respect of Common Securities, will be loaned to Protective Life in
exchange for subordinated Debt Securities of Protective Life ("Subordinated
Debentures") having the terms described herein. Interest and principal payments
on the Subordinated Debentures are intended to fund the payment of periodic
distributions ("dividends") and redemption and liquidation distributions on the
Preferred Securities and the Common Securities. The payment of dividends, if and
to the extent declared out of moneys held by PLC Capital and lawfully available
therefor, and payments on liquidation (to the extent of the remaining assets of
PLC Capital) or redemption with respect to the Preferred Securities will be
guaranteed by a subordinated guarantee (the "Guarantee") of Protective Life to
the limited extent set forth herein. See "PLC Capital L.L.C.," and "Description
of Certain Contractual Back-Up Obligations of Protective Life" for a description
of the various contractual backup obligations of Protective Life.
Specific terms of the particular Debt Securities, Preferred Stock and
Preferred Securities in respect of which this Prospectus is being delivered (the
"Offered Securities") will be set forth in an accompanying Prospectus Supplement
(the "Prospectus Supplement"), which will describe, without limitation and where
applicable, the following: (x) in the case of Debt Securities, the specific
designation, aggregate principal amount, denomination, maturity, premium, if
any, interest rate (which may be fixed or variable), time and method of
calculating payment of interest, if any, place or places where principal of,
premium, if any, and interest, if any, on such Debt Securities will be payable,
currency in which principal of, premium, if any, and interest, if any, on such
Debt Securities will be payable, any terms of redemption at the option of
Protective Life or the holder, any sinking fund provisions, initial public
offering price, any listing on a securities exchange and other special terms,
and (y) in the case of Preferred Stock and Preferred Securities, the specific
designation, stated value and liquidation preference per share or security and
number of shares or securities offered, initial public offering price, dividend
rate (which may be fixed or variable), method of calculating payment of
dividends, place or places where dividends on such Preferred Stock or Preferred
Security will be payable, any terms of redemption, dates on which dividends
shall be payable and dates from which dividends shall accrue, any listing on a
securities exchange and other special terms.
THE OFFERING PRICE TO THE PUBLIC OF THE OFFERED SECURITIES WILL BE LIMITED
TO U.S. $175,000,000 IN THE AGGREGATE (OR ITS EQUIVALENT (BASED ON THE
APPLICABLE EXCHANGE RATE AT THE TIME OF ISSUE), IF OFFERED SECURITIES ARE
OFFERED FOR CONSIDERATION DENOMINATED IN ONE OR MORE FOREIGN CURRENCIES OR
CURRENCY UNITS AS SHALL BE DESIGNATED BY PROTECTIVE LIFE). THE DEBT SECURITIES
MAY BE DENOMINATED IN UNITED STATES DOLLARS OR, AT THE OPTION OF PROTECTIVE LIFE
IF SO SPECIFIED IN THE APPLICABLE PROSPECTUS SUPPLEMENT, IN ONE OR MORE FOREIGN
CURRENCIES OR CURRENCY UNITS. THE DEBT SECURITIES MAY BE ISSUED IN REGISTERED
FORM OR BEARER FORM, OR BOTH. IF SO SPECIFIED IN THE APPLICABLE PROSPECTUS
SUPPLEMENT, DEBT SECURITIES OF A SERIES MAY BE ISSUED IN WHOLE OR IN PART IN THE
FORM OF ONE OR MORE TEMPORARY OR PERMANENT GLOBAL SECURITIES.
THE OFFERED SECURITIES MAY BE SOLD TO OR THROUGH UNDERWRITERS, THROUGH
DEALERS OR AGENTS OR DIRECTLY TO PURCHASERS. SEE "PLAN OF DISTRIBUTION". THE
NAMES OF ANY UNDERWRITERS, DEALERS OR AGENTS INVOLVED IN THE SALE OF THE OFFERED
SECURITIES IN RESPECT OF WHICH THIS PROSPECTUS IS BEING DELIVERED AND ANY
APPLICABLE FEE, COMMISSION OR DISCOUNT ARRANGEMENTS WITH THEM WILL BE SET FORTH
IN A PROSPECTUS SUPPLEMENT.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF OFFERED
SECURITIES UNLESS ACCOMPANIED BY A PROSPECTUS
SUPPLEMENT.
--------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
- --------------------------
*An application has been filed by Goldman, Sachs & Co. with the United States
Patent and Trademark Office for the registration of the MIPS servicemark.
The date of this Prospectus is , 1994.
<PAGE>
AVAILABLE INFORMATION
Protective Life is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith, files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities of the Commission at Room 1024, 450 Fifth Street, N.W.,
Judiciary Plaza, Washington, D.C. 20549 and at the regional offices of the
Commission located at 7 World Trade Center, 13th Floor, Suite 1300, New York,
New York 10048 and Suite 1400, Northwestern Atrium Center, 14th Floor, 500 West
Madison Street, Chicago, Illinois 60661. Copies of such material can also be
obtained at prescribed rates by writing to the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549.
In addition, such reports, proxy statements and other information concerning
Protective Life can be inspected at the offices of the New York Stock Exchange,
Inc., 20 Broad Street, New York, New York 10005.
This Prospectus constitutes a part of a registration statement on Form S-3
(together with all amendments and exhibits, the "Registration Statement") filed
by Protective Life and PLC Capital with the Commission under the Securities Act
of 1933, as amended (the "Securities Act"). This Prospectus does not contain all
the information set forth in the Registration Statement, certain portions of
which have been omitted as permitted by the rules and regulations of the
Commission. For further information with respect to Protective Life, PLC Capital
and the Offered Securities, reference is made to the Registration Statement. The
Registration Statement may be inspected by anyone without charge at the
principal office of the Commission in Washington, D.C. and copies of all or part
of it may be obtained from the Commission upon payment of the prescribed fees.
No separate financial statements of PLC Capital have been included herein.
Protective Life and PLC Capital do not consider that such financial statements
would be material to holders of the Preferred Securities because PLC Capital is
a newly organized special purpose entity, has no operating history and no
independent operations and is not engaged in, and does not propose to engage in,
any activity other than the issuance of the Preferred Securities and the Common
Securities and the lending of the net proceeds thereof to Protective Life
pursuant to loans to be evidenced by the Subordinated Debentures. See "PLC
Capital L.L.C". PLC Capital is a limited liability company formed under the laws
of the State of Delaware and will be managed by Protective Life, in its capacity
as a holder of Common Securities.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Protective Life's Annual Report on Form 10-K for the year ended December 31,
1993 and its Current Report on Form 8-K dated August 4, 1993, as filed with the
Commission pursuant to the Exchange Act (file no. 0-9924), are incorporated
herein by reference.
Each document or report subsequently filed by Protective Life pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof and
prior to the termination of the offering described herein shall be deemed to be
incorporated by reference into this Prospectus and to be a part of this
Prospectus from the date of filing of such document. Any statement contained
herein, or in a document all or a portion of which is incorporated or deemed to
be incorporated by reference herein, shall be deemed to be modified or
superseded for purposes of the Registration Statement and this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of the Registration Statement or this Prospectus.
Protective Life will provide without charge to any person to whom this
Prospectus is delivered, on the written or oral request of such person, a copy
of any or all of the foregoing documents incorporated by reference, other than
certain exhibits to such documents. Requests should be directed to: Protective
Life Corporation, P.O. Box 2606, Birmingham, Alabama 35202 (telephone: (205)
879-9230).
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PROTECTIVE LIFE CORPORATION
Protective Life, a Delaware corporation incorporated in 1981, is an
insurance holding company. The principal business of Protective Life is the
ownership of a group of life insurance companies that provide financial services
through the production, distribution and administration of insurance and
investment products. Founded in 1907, Protective Life Insurance Company is
Protective Life's principal operating subsidiary.
During 1993, Protective Life reported revenues of $760 million and net
income of $57 million. At December 31, 1993, Protective Life had total assets of
$5.3 billion, stockholders' equity of $361 million and life insurance inforce of
$42.5 billion. Protective Life's insurance subsidiaries generated approximately
94% of its revenues in 1993. Protective Life is rated "AA" for claims-paying
ability from both Standard & Poor's Corporation and Duff & Phelps Credit Rating
Co. Such ratings are based on factors of relevance primarily to policyholders
and are not directed to the protection of investors.
Protective Life's principal executive offices are located at 2801 Highway
280 South, Birmingham, Alabama 35223, and its telephone number is (205)
879-9230.
Protective Life's ability to pay principal and interest on any Debt
Securities, Preferred Stock or Subordinated Debentures is affected by the
ability of its insurance company subsidiaries, Protective Life's principal
sources of cash flow, to declare and distribute dividends and to make payments
on surplus notes, (i.e., intercompany notes owed by insurance company
subsidiaries to Protective Life under terms so deeply subordinated that the debt
is treated as capital for statutory accounting purposes) both of which may be
limited by regulatory restrictions and, in the case of payments on surplus
notes, by certain financial covenants. Protective Life's cash flow is also
dependent on revenues from investment, data processing, legal and management
services rendered to its subsidiaries. Insurance company subsidiaries of
Protective Life are subject to various state statutory and regulatory
restrictions, applicable to insurance companies generally, that limit the amount
of cash dividends, loans and advances that those subsidiaries may pay to
Protective Life. The restrictions are generally based on certain levels of
surplus, investment income and operating income, as determined under statutory
insurance accounting practices. In general, dividends up to specified levels are
considered ordinary and may be paid thirty days after written notice to the
insurance commissioner of the state of domicile unless such commissioner objects
to the dividend prior to the expiration of such period. Dividends in larger
amounts are considered extraordinary and are subject to affirmative prior
approval by such commissioner. The maximum amount that would qualify as ordinary
dividends to Protective Life by its insurance subsidiaries in 1994 is estimated
to be $57 million as of December 31, 1993. No assurance can be given that more
stringent restrictions will not be adopted from time to time by states in which
Protective Life's insurance subsidiaries are domiciled, which restrictions could
have the effect, under certain circumstances, of significantly reducing
dividends or other amounts payable to Protective Life by such subsidiaries
without affirmative prior approval by state regulatory authorities.
In the event of the insolvency, liquidation, reorganization, dissolution or
other winding-up of a subsidiary of Protective Life, all creditors of such
subsidiary, including holders of life and health insurance policies, would be
entitled to payment in full out of the assets of such subsidiary before
Protective Life, as shareholder or holder of surplus notes, would be entitled to
any payment, and thus such creditors would have to be paid in full before the
creditors of Protective Life (including holders of Debt Securities or
Subordinated Debentures) would be entitled to receive any payment from the
assets of such subsidiary.
PLC CAPITAL L.L.C.
PLC Capital is a limited liability company formed under the laws of the
State of Delaware. PLC Capital's offices are located at 2801 Highway 280 South,
Birmingham, Alabama 35223 (Telephone: (205) 879-9230). Protective Life owns,
directly and indirectly, all of the Common Securities of PLC Capital, which
Common Securities are nontransferable. PLC Capital was formed by Protective Life
and one of its subsidiaries solely to issue Common Securities and Preferred
Securities (collectively, the
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"Membership Securities") and to lend the net proceeds thereof to Protective Life
in exchange for Subordinated Debentures. Interest and principal payments on
Subordinated Debentures are intended to fund the payment of dividends and
redemption and liquidation distributions on the Membership Securities.
Accordingly, PLC Capital's sole source of cash flow is Protective Life, and PLC
Capital's ability to make dividend and other payments in respect of Preferred
Securities will be dependent on interest and principal payments by Protective
Life on the Subordinated Debentures. See "Protective Life". PLC Capital will be
managed by Protective Life in its capacity as a holder of Common Securities (in
such capacity, the "Managing Member").
PLC Capital will be managed by Protective Life, in its capacity as a holder
of Common Securities (in such capacity, the "Managing Member"). Holders of
Membership Securities in PLC Capital are referred to herein as "Members." PLC
Capital's Limited Liability Company Agreement (the "L.L.C. Agreement") provides
that Protective Life, in its capacity as a holder of Common Securities, shall be
liable for all obligations and liabilities of PLC Capital (other than
obligations to holders of Preferred Securities).
USE OF PROCEEDS
The proceeds from the sale of any Preferred Securities (together with any
capital contributed in respect of Common Securities) will be loaned to
Protective Life in exchange for Subordinated Debentures. Protective Life will
use borrowings from PLC Capital, and the net proceeds from any sale of Debt
Securities or Preferred Stock, for general corporate purposes, including, but
not limited to, repayments of indebtedness of Protective Life or its
subsidiaries.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth Protective Life's ratio of earnings to fixed
charges:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------------------------------------
1989 1990 1991 1992 1993
--------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed
Charges*..................... 25.8 8.2 9.8 13.5 14.5
<FN>
- ------------------------
*The ratio of earnings to fixed charges is calculated by dividing the sum of
income before income tax of Protective Life and Subsidiaries excluding pretax
minority interest, and interest expense on debt, by interest expense on debt.
</TABLE>
DESCRIPTION OF DEBT SECURITIES OF PROTECTIVE LIFE
The Debt Securities offered hereby are to be issued in one or more series
under either (i) the Indenture, dated as of , 1994 (the "Senior
Indenture"), between Protective Life and The Bank of New York, as Trustee (the
"Trustee") or (ii) the Subordinated Indenture, dated as of , 1994 (the
"Subordinated Indenture" and, together with the Senior Indenture, the
"Indentures"), between Protective Life and AmSouth Bank NA, as trustee (also,
the "Trustee"), copies of which will be filed as exhibits to the Registration
Statement of which this Prospectus forms a part. The offering price to the
public of the Debt Securities, Preferred Stock and Preferred Securities (the
"Offered Securities") offered pursuant to this Prospectus will be limited to
U.S. $175,000,000 aggregate principal amount (or its equivalent (based on the
applicable exchange rate at the time of issue) if Offered Securities are issued
with principal amounts denominated in one or more foreign currencies or currency
units as shall be designated by Protective Life).
The statements herein relating to the Debt Securities and the following
summaries of certain provisions of the Indentures do not purport to be complete
and are subject to, and are qualified in their entirety by reference to, all the
provisions of the Indentures, including the definitions therein of certain terms
capitalized in this Prospectus. Whenever particular Sections or defined terms of
the Indentures are referred to herein or in a Prospectus Supplement, such
Sections or defined terms are incorporated herein or therein by reference.
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GENERAL
The Debt Securities will be unsecured obligations of Protective Life. The
Debt Securities issued under the Senior Indenture will be unsecured and will
rank PARI PASSU with all other unsecured and unsubordinated obligations of
Protective Life. The Debt Securities issued under the Subordinated Indenture
will be subordinate and junior in right of payment to the extent and in the
manner set forth in the Subordinated Indenture to all Senior Indebtedness of
Protective Life. See "-- Subordination under the Subordinated Indenture." The
Indentures do not limit the aggregate amount of Debt Securities which may be
issued thereunder, nor do they limit the incurrence or issuance of other secured
or unsecured debt of Protective Life.
Reference is made to the applicable Prospectus Supplement which will
accompany this Prospectus for a description of the specific series of Debt
Securities being offered thereby, including: (1) the title of such Debt
Securities; (2) any limit upon the aggregate principal amount of such Debt
Securities; (3) the date or dates on which the principal of and premium, if any,
on such Debt Securities will mature or the method of determining such date or
dates; (4) the rate or rates (which may be fixed or variable) at which such Debt
Securities will bear interest, if any, or the method of calculating such rate or
rates; (5) the date or dates from which interest, if any, will accrue or the
method by which such date or dates will be determined; (6) the date or dates on
which interest, if any, will be payable and the record date or dates therefor;
(7) the place or places where principal of, premium, if any, and interest, if
any, on such Debt Securities will be payable; (8) the period or periods within
which, the price or prices at which, the currency or currencies (including
currency unit or units) in which, and the terms and conditions upon which, such
Debt Securities may be redeemed, in whole or in part, at the option of
Protective Life; (9) the obligation, if any, of Protective Life to redeem or
purchase such Debt Securities pursuant to any sinking fund or analogous
provisions or upon the happening of a specified event and the period or periods
within which, the price or prices at which and the other terms and conditions
upon which, such Debt Securities shall be redeemed or purchased, in whole or in
part, pursuant to such obligations; (10) the denominations in which such Debt
Securities are authorized to be issued; (11) the currency or currency unit for
which Debt Securities may be purchased or in which Debt Securities may be
denominated and/ or the currency or currencies (including currency unit or
units) in which principal of, premium, if any, and interest, if any, on such
Debt Securities will be payable and whether Protective Life or the holders of
any such Debt Securities may elect to receive payments in respect of such Debt
Securities in a currency or currency unit other than that in which such Debt
Securities are stated to be payable; (12) if other than the principal amount
thereof, the portion of the principal amount of such Debt Securities which will
be payable upon declaration of the acceleration of the maturity thereof or the
method by which such portion shall be determined; (13) the person to whom any
interest on any such Debt Security shall be payable if other than the person in
whose name such Debt Security is registered on the applicable record date; (14)
any addition to, or modification or deletion of, any Event of Default or any
covenant of Protective Life specified in the Indenture with respect to such Debt
Securities; (15) the application, if any, of such means of defeasance or
covenant defeasance as may be specified for such Debt Securities; (16) whether
such Debt Securities are to be issued in whole or in part in the form of one or
more temporary or permanent global securities and, if so, the identity of the
depository for such global security or securities; and (17) any other special
terms pertaining to such Debt Securities. Unless otherwise specified in the
applicable Prospectus Supplement, the Debt Securities will not be listed on any
securities exchange. (Section 3.1 of each Indenture.)
Unless otherwise specified in the applicable Prospectus Supplement, Debt
Securities will be issued in fully-registered form without coupons. Where Debt
Securities of any series are issued in bearer form, the special restrictions and
considerations, including special offering restrictions and special Federal
income tax considerations, applicable to any such Debt Securities and to payment
on and transfer and exchange of such Debt Securities will be described in the
applicable Prospectus Supplement. Bearer Debt Securities will be transferable by
delivery. (Section 3.5 of each Indenture.)
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Debt Securities may be sold at a substantial discount below their stated
principal amount, bearing no interest or interest at a rate which at the time of
issuance is below market rates. Certain Federal income tax consequences and
special considerations applicable to any such Debt Securities will be described
in the applicable Prospectus Supplement.
If the purchase price of any of the Debt Securities is payable in one or
more foreign currencies or currency units or if any Debt Securities are
denominated in one or more foreign currencies or currency units or if the
principal of, premium, if any, or interest, if any, on any Debt Securities is
payable in one or more foreign currencies or currency units, the restrictions,
elections, certain Federal income tax considerations, specific terms and other
information with respect to such issue of Debt Securities and such foreign
currency or currency units will be set forth in the applicable Prospectus
Supplement.
The general provisions of the Indentures do not afford holders of the Debt
Securities protection in the event of a highly leveraged or other transaction
involving Protective Life that may adversely affect holders of the Debt
Securities.
PAYMENT, REGISTRATION, TRANSFER AND EXCHANGE
Unless otherwise provided in the applicable Prospectus Supplement, payments
in respect of the Debt Securities will be made in the designated currency at the
office or agency of Protective Life maintained for that purpose as Protective
Life may designate from time to time, except that, at the option of Protective
Life, interest payments, if any, on Debt Securities in registered form may be
made (i) by checks mailed to the holders of Debt Securities entitled thereto at
their registered addresses or (ii) by wire transfer to an account maintained by
the person entitled thereto as specified in the Register. (Sections 3.7(a) and
9.2 of each Indenture.) Unless otherwise indicated in an applicable Prospectus
Supplement, payment of any installment of interest on Debt Securities in
registered form will be made to the person in whose name such Debt Security is
registered at the close of business on the regular record date for such
interest. (Section 3.7(a) of each Indenture.)
Payment in respect of Debt Securities in bearer form will be made in the
currency and in the manner designated in the Prospectus Supplement, subject to
any applicable laws and regulations, at such paying agencies outside the United
States as Protective Life may appoint from time to time. The paying agents
outside the United States initially appointed by Protective Life for a series of
Debt Securities will be named in the Prospectus Supplement. Protective Life may
at any time designate additional paying agents or rescind the designation of any
paying agents, except that, if Debt Securities of a series are issuable as
Registered Securities, Protective Life will be required to maintain at least one
paying agent in each Place of Payment for such series and, if Debt Securities of
a series are issuable as Bearer Securities, Protective Life will be required to
maintain a paying agent in a Place of Payment outside the United States where
Debt Securities of such series and any coupons appertaining thereto may be
presented and surrendered for payment. (Section 9.2 of each Indenture.)
Unless otherwise provided in the applicable Prospectus Supplement, Debt
Securities in registered form will be transferable or exchangeable at the agency
of Protective Life maintained for such purpose as designated by Protective Life
from time to time. (Sections 3.5 and 9.2 of each Indenture.) Debt Securities may
be transferred or exchanged without service charge, other than any tax or other
governmental charge imposed in connection therewith. (Section 3.5 of each
Indenture.)
GLOBAL DEBT SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more fully registered global securities (a "Registered Global
Security") that will be deposited with a depository (the "Depository") or with a
nominee for the Depository identified in the applicable Prospectus Supplement.
In such a case, one or more Registered Global Securities will be issued in a
denomination or aggregate denominations equal to the portion of the aggregate
principal amount of outstanding Debt Securities of the series to be represented
by such Registered Global Security or Securities. (Section 3.3 of each
Indenture.) Unless and until it is exchanged in whole or in part for Debt
Securities in definitive certificated form, a Registered Global Security may not
be registered for transfer or exchange except as a whole by
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the Depository for such Registered Global Security to a nominee of such
Depository or by a nominee of such Depository to such Depository or another
nominee of such Depository or by such Depository or any such nominee to a
successor Depository for such series or a nominee of such successor Depository
and except in the circumstances described in the applicable Prospectus
Supplement. (Section 3.5 of each Indenture.)
The specific terms of the depository arrangement with respect to any portion
of a series of Debt Securities to be represented by a Registered Global Security
will be described in the applicable Prospectus Supplement. Protective Life
expects that the following provisions will apply to depository arrangements.
Upon the issuance of any Registered Global Security, and the deposit of such
Registered Global Security with or on behalf of the Depository for such
Registered Global Security, the Depository will credit, on its book-entry
registration and transfer system, the respective principal amounts of the Debt
Securities represented by such Registered Global Security to the accounts of
institutions ("participants") that have accounts with the Depository or its
nominee. The accounts to be credited will be designated by the underwriters or
agents engaging in the distribution of such Debt Securities or by Protective
Life, if such Debt Securities are offered and sold directly by Protective Life.
Ownership of beneficial interests in a Registered Global Security will be
limited to participants or persons that may hold interests through participants.
Ownership of beneficial interests by participants in such Registered Global
Security will be shown on, and the transfer of such beneficial interests will be
effected only through, records maintained by the Depository for such Registered
Global Security or by its nominee. Ownership of beneficial interests in such
Registered Global Security by persons that hold through participants will be
shown on, and the transfer of such beneficial interests within such participants
will be effected only through, records maintained by such participants. The laws
of some jurisdictions require that certain purchasers of securities take
physical delivery of such securities in certificated form. The foregoing
limitations and such laws may impair the ability to transfer beneficial
interests in such Registered Global Securities.
So long as the Depository for a Registered Global Security, or its nominee,
is the registered owner of such Registered Global Security, such Depository or
such nominee, as the case may be, will be considered the sole owner or holder of
the Debt Securities represented by such Registered Global Security for all
purposes under each Indenture. Unless otherwise specified in the applicable
Prospectus Supplement and except as specified below, owners of beneficial
interests in such Registered Global Security will not be entitled to have Debt
Securities of the series represented by such Registered Global Security
registered in their names, will not receive or be entitled to receive physical
delivery of Debt Securities of such series in certificated form and will not be
considered the holders thereof for any purposes under the relevant Indenture.
(Section 3.8 of each Indenture.) Accordingly, each person owning a beneficial
interest in such Registered Global Security must rely on the procedures of the
Depository and, if such person is not a participant, on the procedures of the
participant through which such person owns its interest, to exercise any rights
of a holder under the relevant Indenture. The Depository may grant proxies and
otherwise authorize participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a holder
is entitled to give or take under the relevant Indenture. Protective Life
understands that, under existing industry practices, if Protective Life requests
any action of holders or any owner of a beneficial interest in such Registered
Global Security desires to give any notice or take any action a holder is
entitled to give or take under the relevant Indenture, the Depository would
authorize the participants to give such notice or take such action, and
participants would authorize beneficial owners owning through such participants
to give such notice or take such action or would otherwise act upon the
instructions of beneficial owners owning through them.
Unless otherwise specified in the applicable Prospectus Supplement, payments
with respect to principal, premium, if any, and interest, if any, on Debt
Securities represented by a Registered Global Security registered in the name of
a Depository or its nominee will be made to such Depository or its nominee, as
the case may be, as the registered owner of such Registered Global Security.
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Protective Life expects that the Depository for any Debt Securities
represented by a Registered Global Security, upon receipt of any payment of
principal, premium or interest, will immediately credit participants' accounts
with payments in amounts proportionate to their respective beneficial interests
in the principal amount of such Registered Global Security as shown on the
records of such Depository. Protective Life also expects that payments by
participants to owners of beneficial interests in such Registered Global
Security held through such participants will be governed by standing
instructions and customary practices, as is now the case with the securities
held for the accounts of customers registered in "street names", and will be the
responsibility of such participants. None of Protective Life, the respective
Trustees or any agent of Protective Life or the respective Trustees shall have
any responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial interests of a Registered Global
Security, or for maintaining, supervising or reviewing any records relating to
such beneficial interests. (Section 3.8 of each Indenture.)
Unless otherwise specified in the applicable Prospectus Supplement, if the
Depository for any Debt Securities represented by a Registered Global Security
is at any time unwilling or unable to continue as Depository and a successor
Depository is not appointed by Protective Life within 90 days, Protective Life
will issue such Debt Securities in definitive certificated form in exchange for
such Registered Global Security. In addition, Protective Life may at any time
and in its sole discretion determine not to have any of the Debt Securities of a
series represented by one or more Registered Global Securities and, in such
event, will issue Debt Securities of such series in definitive certificated form
in exchange for all of the Registered Global Security or Securities representing
such Debt Securities. (Section 3.5 of each Indenture.)
The Debt Securities of a series may also be issued in whole or in part in
the form of one or more bearer global securities (a "Bearer Global Security")
that will be deposited with a depository, or with a nominee for such depository,
identified in the applicable Prospectus Supplement. Any such Bearer Global
Securities may be issued in temporary or permanent form. (Section 3.4 of each
Indenture.) The specific terms and procedures, including the specific terms of
the depository arrangement, with respect to any portion of a series of Debt
Securities to be represented by one or more Bearer Global Securities will be
described in the applicable Prospectus Supplement.
CONSOLIDATION, MERGER OR SALE BY PROTECTIVE LIFE
Protective Life shall not consolidate with or merge into any other
corporation or sell its assets substantially as an entirety, unless (i) the
corporation formed by such consolidation or into which Protective Life is merged
or the corporation which acquires its assets is organized in the United States
and expressly assumes all of the obligations of Protective Life under each
Indenture, and (ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have happened and be continuing. Upon any such
consolidation, merger or sale, the successor corporation formed by such
consolidation, or into which Protective Life is merged or to which such sale is
made, shall succeed to, and be substituted for Protective Life under each
Indenture. (Section 7.1 of each Indenture.)
EVENTS OF DEFAULT, NOTICE AND CERTAIN RIGHTS ON DEFAULT
Each Indenture provides that, if an Event of Default specified therein
occurs with respect to the Debt Securities of any series and is continuing, the
Trustee for such series or the holders of 25% in aggregate principal amount of
all of the outstanding Debt Securities of that series, by written notice to
Protective Life (and to the Trustee for such series, if notice is given by such
holders of Debt Securities), may declare the principal of (or, if the Debt
Securities of that series are Original Issue Discount Securities or Indexed
Securities, such portion of the principal amount specified in the Prospectus
Supplement) and accrued interest on all the Debt Securities of that series to be
due and payable (provided, with respect to any Debt Securities (including
Subordinated Debentures) issued under the Subordinated Indenture, that the
payment of principal and interest on such Debt Securities shall remain
subordinated to the extent provided in Article 12 of the Subordinated
Indenture). (Section 5.2 of each Indenture.)
Events of Default with respect to Debt Securities of any series are defined
in each Indenture as being: (a) default for 30 days in payment of any interest
on any Debt Security of that series or any coupon
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appertaining thereto or any additional amount payable with respect to Debt
Securities of such series as specified in the applicable Prospectus Supplement
when due; (b) default in payment of principal, or premium, if any, at maturity
or on redemption or otherwise, or in the making of a mandatory sinking fund
payment of any Debt Securities of that series when due; (c) default for 60 days
after notice to Protective Life by the Trustee for such series, or by the
holders of 25% in aggregate principal amount of the Debt Securities of such
series then outstanding, in the performance of any other agreement in the Debt
Securities of that series, in the Indenture or in any supplemental indenture or
board resolution referred to therein under which the Debt Securities of that
series may have been issued; (d) default resulting in acceleration of other
indebtedness of Protective Life for borrowed money where the aggregate principal
amount so accelerated exceeds $25 million and such acceleration is not rescinded
or annulled within 30 days after the written notice thereof to Protective Life
by the Trustee or to Protective Life and the Trustee by the holders of 25% in
aggregate principal amount of the Debt Securities of such series then
outstanding, PROVIDED that such Event of Default will be remedied, cured or
waived if the default that resulted in the acceleration of such other
indebtedness is remedied, cured or waived; and (e) certain events of bankruptcy,
insolvency or reorganization of Protective Life. (Section 5.1 of each
Indenture.) Events of Default with respect to a specified series of Debt
Securities may be added to the Indenture and, if so added, will be described in
the applicable Prospectus Supplement. (Sections 3.1 and 5.1(7) of each
Indenture.)
Each Indenture provides that the Trustee will, within 90 days after the
occurrence of a Default with respect to the Debt Securities of any series, give
to the holders of the Debt Securities of that series notice of all Defaults
known to it unless such Default shall have been cured or waived; PROVIDED that
except in the case of a Default in payment on the Debt Securities of that
series, the Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding such notice is in
the interests of the holders of the Debt Securities of that series. (Section 6.6
of each Indenture.) "Default" means any event which is, or after notice or
passage of time or both, would be, an Event of Default. (Section 1.1 of each
Indenture.)
Each Indenture provides that the holders of a majority in aggregate
principal amount of the Debt Securities of each series affected (with each such
series voting as a class) may, subject to certain limited conditions, direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee for such series, or exercising any trust or power conferred on such
Trustee. (Section 5.8 of each Indenture.)
Each Indenture includes a covenant that Protective Life will file annually
with the Trustee a certificate as to Protective Life's compliance with all
conditions and covenants of such Indenture. (Section 9.5 of each Indenture.)
The holders of a majority in aggregate principal amount of any series of
Debt Securities by notice to the Trustee for such series may waive, on behalf of
the holders of all Debt Securities of such series, any past Default or Event of
Default with respect to that series and its consequences except a Default or
Event of Default in the payment of the principal of, premium, if any, or
interest, if any, on any Debt Security. (Section 5.7 of each Indenture.)
MODIFICATION OF THE INDENTURES
Each Indenture contains provisions permitting Protective Life and the
Trustee to enter into one or more supplemental indentures without the consent of
the holders of any of the Debt Securities in order (i) to evidence the
succession of another corporation to Protective Life and the assumption of the
covenants of Protective Life by a successor to Protective Life; (ii) to add to
the covenants of Protective Life or surrender any right or power of Protective
Life; (iii) to add additional Events of Default with respect to any series of
Debt Securities; (iv) to add or change any provisions to such extent as
necessary to permit or facilitate the issuance of Debt Securities in bearer
form; (v) to change or eliminate any provision affecting only Debt Securities
not yet issued; (vi) to secure the Debt Securities; (vii) to establish the form
or terms of Debt Securities; (viii) to evidence and provide for successor
Trustees; (ix) if allowed without penalty under applicable laws and regulations,
to permit payment in respect of Debt Securities in bearer
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form in the United States; (x) to correct any defect or supplement any
inconsistent provisions or to make any other provisions with respect to matters
or questions arising under such Indenture, PROVIDED that such action does not
adversely affect the interests of any holder of Debt Securities of any series;
or (xi) to cure any ambiguity or correct any mistake. (Section 8.1 of each
Indenture.)
Each Indenture also contains provisions permitting Protective Life and the
Trustee, with the consent of the holders of a majority in aggregate principal
amount of the outstanding Debt Securities affected by such supplemental
indenture (with the Debt Securities of each series voting as a class), to
execute supplemental indentures adding any provisions to or changing or
eliminating any of the provisions of such Indenture or any supplemental
indenture or modifying the rights of the holders of Debt Securities of such
series, except that, without the consent of the holder of each Debt Security so
affected, no such supplemental indenture may: (i) change the time for payment of
principal or premium, if any, or interest on any Debt Security; (ii) reduce the
principal of, or any installment of principal of, or premium, if any, or
interest on any Debt Security, or change the manner in which the amount of any
of the foregoing is determined; (iii) reduce the amount of premium, if any,
payable upon the redemption of any Debt Security; (iv) reduce the amount of
principal payable upon acceleration of the maturity of any Original Issue
Discount or Index Security; (v) change the currency or currency unit in which
any Debt Security or any premium or interest thereon is payable; (vi) impair the
right to institute suit for the enforcement of any payment on or with respect to
any Debt Security; (vii) reduce the percentage in principal amount of the
outstanding Debt Securities affected thereby the consent of whose holders is
required for modification or amendment of such Indenture or for waiver of
compliance with certain provisions of the Indenture or for waiver of certain
defaults; (viii) change the obligation of Protective Life to maintain an office
or agency in the places and for the purposes specified in such Indenture; or
(ix) modify the provisions relating to waiver of certain defaults or any of the
foregoing provisions. (Section 8.2 of each Indenture.)
SUBORDINATION UNDER THE SUBORDINATED INDENTURE
In the Subordinated Indenture, Protective Life will covenant and agree that
any Debt Securities (including Subordinated Debentures) issued thereunder
("Subordinated Debt Securities") are subordinate and junior in right of payment
to all Senior Indebtedness to the extent provided in the Subordinated Indenture.
The Subordinated Indenture defines the term "Senior Indebtedness" as the
principal, premium, if any, and interest on (i) all indebtedness of Protective
Life, whether outstanding on the date of the issuance of Subordinated Debt
Securities or thereafter created, incurred or assumed, which is for money
borrowed, or evidenced by a note or similar instrument given in connection with
the acquisition of any business, properties or assets, including securities,
(ii) any indebtedness of others of the kinds described in the preceding clause
(i) for the payment of which Protective Life is responsible or liable as
guarantor or otherwise and (iii) amendments, renewals, extensions and refundings
of any such indebtedness, unless in any instrument or instruments evidencing or
securing such indebtedness or pursuant to which the same is outstanding, or in
any such amendment, renewal, extension or refunding, it is expressly provided
that such indebtedness is not superior in right of payment to Subordinated Debt
Securities. The Senior Indebtedness shall continue to be Senior Indebtedness and
entitled to the benefits of the subordination provisions irrespective of any
amendment, modification or waiver of any term of the Senior Indebtedness or
extension or renewal of the Senior Indebtedness.
If (i) Protective Life defaults in the payment of any principal, or premium,
if any, or interest on any Senior Indebtedness when the same becomes due and
payable, whether at maturity or at a date fixed for prepayment or declaration or
otherwise or (ii) an event of default occurs with respect to any Senior
Indebtedness permitting the holders thereof to accelerate the maturity thereof
and written notice of such event of default is given to Protective Life by the
holders of Senior Indebtedness, then unless and until such default in payment or
event of default shall have been cured or waived or shall have ceased to exist,
no direct or indirect payment (in cash, property or securities, by set-off or
otherwise) shall be made or agreed to be made on account of the Subordinated
Debt Securities or interest thereon or in respect of any repayment, redemption,
retirement, purchase or other acquisition of Subordinated Debt Securities.
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In the event of (i) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding relating
to Protective Life, its creditors or its property, (ii) any proceeding for the
liquidation, dissolution or other winding-up of Protective Life, voluntary or
involuntary, whether or not involving insolvency or bankruptcy proceedings,
(iii) any assignment by Protective Life for the benefit of creditors or (iv) any
other marshalling of the assets of Protective Life, all Senior Indebtedness
(including, without limitation, interest accruing after the commencement of any
such proceeding, assignment or marshalling of assets) shall first be paid in
full before any payment or distribution, whether in cash, securities or other
property, shall be made by Protective Life on account of Subordinated Debt
Securities. In any such event, any payment or distribution, whether in cash,
securities or other property (other than securities of Protective Life or any
other corporation provided for by a plan of reorganization or a readjustment,
the payment of which is subordinate, at least to the extent provided in the
subordination provisions of the Subordinated Indenture with respect to the
indebtedness evidenced by Subordinated Debt Securities, to the payment of all
Senior Indebtedness at the time outstanding and to any securities issued in
respect thereof under any such plan of reorganization or readjustment), which
would otherwise (but for the subordination provisions) be payable or deliverable
in respect of Subordinated Debt Securities (including any such payment or
distribution which may be payable or deliverable by reason of the payment of any
other indebtedness of Protective Life being subordinated to the payment of
Subordinated Debt Securities) shall be paid or delivered directly to the holders
of Senior Indebtedness, or to their representative or trustee, in accordance
with the priorities then existing among such holders until all Senior
Indebtedness shall have been paid in full. No present or future holder of any
Senior Indebtedness shall be prejudiced in the right to enforce subordination of
the indebtedness evidenced by Subordinated Debt Securities by any act or failure
to act on the part of Protective Life.
Senior Indebtedness shall not be deemed to have been paid in full unless the
holders thereof shall have received cash, securities or other property equal to
the amount of such Senior Indebtedness then outstanding. Upon the payment in
full of all Senior Indebtedness, the holders of Subordinated Debt Securities
shall be subrogated to all the rights of any holders of Senior Indebtedness to
receive any further payments or distributions applicable to the Senior
Indebtedness until all Subordinated Debt Securities shall have been paid in
full, and such payments or distributions received by any holder of Subordinated
Debt Securities, by reason of such subrogation, of cash, securities or other
property which otherwise would be paid or distributed to the holders of Senior
Indebtedness, shall, as between Protective Life and its creditors other than the
holders of Senior Indebtedness, on the one hand, and the holders of Subordinated
Debt Securities, on the other, be deemed to be a payment by Protective Life on
account of Senior Indebtedness, and not on account of Subordinated Debt
Securities.
The Subordinated Indenture provides that the foregoing subordination
provisions, insofar as they relate to any particular issue of Subordinated Debt
Securities, may be changed prior to such issuance. Any such change would be
described in the Prospectus Supplement relating to such Subordinated Debt
Securities.
DEFEASANCE AND COVENANT DEFEASANCE
If indicated in the applicable Prospectus Supplement, Protective Life may
elect either (i) to defease and be discharged from any and all obligations with
respect to the Debt Securities of or within any series (except as otherwise
provided in the relevant Indenture) ("defeasance") or (ii) to be released from
its obligations with respect to certain covenants applicable to the Debt
Securities of or within any series ("covenant defeasance"), upon the deposit
with the relevant Trustee (or other qualifying trustee), in trust for such
purpose, of money and/or Government Obligations which through the payment of
principal and interest in accordance with their terms will provide money in an
amount sufficient, without reinvestment, to pay the principal of and any premium
or interest on such Debt Securities to Maturity or redemption, as the case may
be, and any mandatory sinking fund or analogous payments thereon. As a condition
to defeasance or covenant defeasance, Protective Life must deliver to the
Trustee an Opinion of Counsel to the effect that the Holders of such Debt
Securities will not recognize income, gain or loss for Federal income tax
purposes as a result of such defeasance or covenant defeasance and will be
subject to
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Federal income tax on the same amounts and in the same manner and at the same
times as would have been the case if such defeasance or covenant defeasance had
not occurred. Such Opinion of Counsel, in the case of defeasance under clause
(i) above, must refer to and be based upon a ruling of the Internal Revenue
Service or a change in applicable Federal income tax law occurring after the
date of the relevant Indenture. (Article 4 of each Indenture.) If indicated in
the applicable Prospectus Supplement, in addition to obligations of the United
States or an agency or instrumentality thereof, Government Obligations may
include obligations of the government or an agency or instrumentality of the
government issuing the currency or currency unit in which Debt Securities of
such series are payable. (Section 3.1 of each Indenture.)
In addition, with respect to the Subordinated Indenture, in order to be
discharged (i) no event or condition shall exist that, pursuant to certain
provisions described under "-- Subordination under the Subordinated Indenture"
above, would prevent Protective Life from making payments of principal of (and
premium, if any) and interest on Subordinated Debt Securities at the date of the
irrevocable deposit referred to above or at any time during the period ending on
the 121st day after such deposit date, and (ii) Protective Life shall deliver to
the Trustee under the Subordinated Indenture an opinion of counsel to the effect
that (a) the trust funds will not be subject to any rights of holders of Senior
Indebtedness, and (b) after the 121st day following the deposit, the trust funds
will not be subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally except that
if a court were to rule under any such law in any case or proceeding that the
trust refunds remained the property of Protective Life, then the Trustee under
the Subordinated Indenture and the holders of Subordinated Debt Securities would
be entitled to certain rights as secured creditors in such trust funds.
Protective Life may exercise its defeasance option with respect to such Debt
Securities notwithstanding its prior exercise of its covenant defeasance option.
If Protective Life exercises its defeasance option, payment of such Debt
Securities may not be accelerated because of a Default or an Event of Default.
If Protective Life exercises its covenant defeasance option, payment of such
Debt Securities may not be accelerated by reason of a Default or an Event of
Default with respect to the covenants to which such covenant defeasance is
applicable. However, if such acceleration were to occur by reason of another
Event of Default, the realizable value at the acceleration date of the money and
Government Obligations in the defeasance trust could be less than the principal
and interest then due on such Debt Securities, in that the required deposit in
the defeasance trust is based upon scheduled cash flow rather than market value,
which will vary depending upon interest rates and other factors.
THE TRUSTEES
The Bank of New York is the Trustee under the Senior Indenture. AmSouth Bank
NA is the Trustee under the Subordinated Indenture. Protective Life may also
maintain banking and other commercial relationships with each of the Trustees
and their affiliates in the ordinary course of business.
DESCRIPTION OF CAPITAL STOCK OF PROTECTIVE LIFE
AUTHORIZED AND OUTSTANDING CAPITAL STOCK
At December 31, 1993, the authorized capital stock of Protective Life was
21,000,000 shares, consisting of:
(a) 850,000 shares of Preferred Stock, of which no shares were
outstanding;
(b) 150,000 shares of Junior Participating Cumulative Preferred Stock,
par value $1.00 per share (the "Junior Preferred Stock"), of which no shares
were outstanding; and
(c) 20,000,000 shares of Common Stock, par value $.50 per share (the
"Common Stock"), of which 13,693,244 shares were outstanding.
In general, the classes of authorized capital stock are afforded preferences
with respect to dividends and liquidation rights in the order listed above. The
Board of Directors of Protective Life is
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empowered, without approval of the stockholders, to cause the Preferred Stock to
be issued in one or more series, with the numbers of shares of each series and
the rights, preferences and limitations of each series to be determined by it.
The specific matters that may be determined by the Board of Directors include
the dividend rights, conversion rights, redemption rights and liquidation
preferences, if any, of any wholly unissued series of Preferred Stock (or of the
entire class of Preferred Stock if none of such shares have been issued), the
number of shares constituting such series and the terms and conditions of the
issue thereof. The descriptions set forth below do not purport to be complete
and are qualified in their entirety by reference to the Restated Certificate of
Incorporation of Protective Life, as amended (the "Restated Certificate of
Incorporation").
In the proxy statement for the Annual Meeting of stockholders of Protective
Life to be held on May 2, 1994, the Board of Directors of Protective Life will
submit to the stockholders a resolution approving an amendment to the Restated
Certificate of Incorporation which would increase the number of shares of
authorized Common Stock from 20,000,000 to 80,000,000 and the number of shares
of authorized Preferred Stock from 1,000,000 to 4,000,000.
No holders of any class of Protective Life's capital stock are entitled to
preemptive rights.
PREFERRED STOCK
The particular terms of any series of Preferred Stock offered hereby
("Offered Preferred Stock") will be set forth in the Prospectus Supplement
relating thereto. The rights, preferences, privileges and restrictions,
including dividend rights, voting rights, terms of redemption and liquidation
preferences, of the Offered Preferred Stock of each series will be fixed or
designated pursuant to a certificate of designation adopted by the Board of
Directors or a duly authorized committee thereof. The description of the terms
of a particular series of Offered Preferred Stock that will be set forth in a
Prospectus Supplement does not purport to be complete and is qualified in its
entirety by reference to the certificate of designation relating to such series.
JUNIOR PREFERRED STOCK
The Junior Preferred Stock may be issued to holders of the Common Stock
under certain circumstances pursuant to rights granted under Protective Life's
Share Purchase Rights Plan. Protective Life can redeem the rights at $.01 per
right until ten business days following a public announcement that 20% or more
of the Common Stock has been acquired by one or more related investors. If,
after the rights become exercisable, Protective Life becomes involved in a
merger or certain other major corporate transactions, each right then
outstanding (other than those held by the 20% holder) would entitle its holder
to buy from Protective Life or its successor Common Stock of the acquiror or
Protective Life or its successor worth twice the exercise price.
CERTAIN OTHER PROVISIONS OF PROTECTIVE LIFE'S
RESTATED CERTIFICATE OF INCORPORATION
Protective Life's Restated Certificate of Incorporation contains a "fair
price" provision which generally requires that certain "Business Combinations"
with a "Related Person" (generally the beneficial owner of at least 20 percent
of Protective Life's voting stock) be approved by the holders of at least 80
percent of Protective Life's voting stock and the holders of at least 67 percent
of the voting stock held by stockholders other than such Related Person, unless
(a) the transaction is approved by at least a majority of the "Continuing
Directors" of Protective Life, who constitute a majority of the entire board, or
(b) the Business Combination is either a "Reorganization" or a "Business
Combination" in which Protective Life is the surviving corporation and, in
either event, the cash or fair market value of the property, securities or other
consideration to be received per share as a result of the transaction by holders
of the Common Stock of Protective Life other than the Related Person is not less
than the highest per share price paid by such Related Person in acquiring any
holdings of Protective Life's Common Stock either in or subsequent to the
transaction or series of transactions by reason of which the Related Person
became a Related Person. Protective Life's Restated Certificate of Incorporation
defines "Business Combination" as (i) any merger or consolidation involving
Protective Life or a subsidiary of
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Protective Life, (ii) any sale, lease, exchange, transfer or other disposition,
including without limitation a mortgage or any other security device, of all or
any "Substantial Part" of the assets either of Protective Life or of a
subsidiary of Protective Life, (iii) any sale, lease, exchange, transfer or
other disposition of all or any "Substantial Part" of the assets of an entity to
Protective Life or a subsidiary of Protective Life, (iv) the issuance by
Protective Life or a subsidiary of Protective Life of any securities of
Protective Life or any subsidiary of Protective Life to a Related Person except
if such issuance were a stock split, stock dividend or other distribution pro
rata to all holders of the same class of voting stock, (v) any recapitalization
or reclassification of Protective Life's securities (including without
limitation, any reverse stock split) or other transaction that would have the
effect of increasing the voting power of a Related Person and (vi) any
agreement, contract or other arrangement providing for any of the transactions
described in the definition of Business Transaction. "Continuing Director" is
defined to mean a director who was a member of the Board of Directors of
Protective Life prior to the time such Related Person became a Related Person.
"Substantial Part" is defined as more than 20 percent of the fair market value
of the total assets of the corporation in question, as determined in good faith
by a majority of the Continuing Directors as of the end of its most recent
fiscal year prior to the time the determination is being made.
GENERAL
The foregoing statements are summaries of certain provisions contained in
the Restated Certificate of Incorporation of Protective Life, the form of which
is filed as an exhibit to the Registration Statement of which this Prospectus is
a part. They do not purport to be complete statements of all the terms and
provisions of the Restated Certificate of Incorporation, and reference is hereby
made to the Restated Certificate of Incorporation for full and complete
statements of such terms and provisions, including the definitions of certain
terms used herein. Whenever reference has been made to the Restated Certificate
of Incorporation, such Restated Certificate of Incorporation shall be deemed to
be incorporated in such statements as a part thereof and such statements are
qualified in their entirety by such reference.
The transfer agent and registrar of the Common Stock is AmSouth Bank NA.
DESCRIPTION OF PREFERRED SECURITIES OF PLC CAPITAL
PLC Capital is authorized to issue from time to time Preferred Securities in
one or more series, with such dividend rights, liquidation preferences,
redemption provisions, voting rights and other rights, powers and duties as
shall be established by the L.L.C. Agreement and written actions (the "Actions")
taken, or to be taken, by the Managing Member establishing such rights, powers
and duties (which Actions, when taken, are deemed to amend and supplement and be
a part of the L.L.C. Agreement). The L.L.C. Agreement has been filed as an
exhibit to the Registration Statement of which this Prospectus forms a part, and
a copy of the Action relating to Preferred Securities of any series will be
filed with the Commission at or prior to the time of the sale of the Preferred
Securities of such series. The Preferred Securities of such series will be
issued in registered form only.
The Managing Member is authorized, subject to the provisions of the L.L.C.
Agreement, to establish by Actions for each series of Preferred Securities, and
the applicable Prospectus Supplement shall set forth with respect to such
series: (i) the number of Preferred Securities to constitute such series and the
distinctive designation thereof; (ii) the dividend rate, the conditions and
dates upon which such dividends shall be payable, the preference or relation
which such dividends shall bear to the dividends payable on any other class of
Membership Securities or on any other series of Preferred Securities, and
whether such dividends shall be cumulative or noncumulative; (iii) whether the
Preferred Securities of such series shall be subject to redemption, and, if so,
the times, prices and other terms and conditions thereof; (iv) the rights of the
holders of Preferred Securities of such series upon the liquidation, dissolution
or winding-up of PLC Capital; (v) whether the Preferred Securities of such
series shall be subject to a retirement or sinking fund, and, if so, the extent,
terms and provisions relative to the operation thereof; (vi) whether the
Preferred Securities of any series shall be convertible into, or exchangeable
for, Membership Securities of any other class or series or securities of any
other kind, including securities issued by Protective Life or any of its
affiliates, and, if so, the price or rate of conversion or exchange and any
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method of adjusting the same; (vii) the limitations and restrictions, if any, to
be applicable while any Preferred Securities of such series are outstanding upon
the payment of dividends or making of other distributions on, and upon the
purchase, redemption or other acquisition by PLC Capital of, Common Securities
or any other class of Membership Securities or any other series of Preferred
Securities ranking junior to the Preferred Securities of such series either as
to dividends or upon liquidation; (viii) the conditions or restrictions, if any,
upon the creation of indebtedness of PLC Capital or upon the issue of any
additional Membership Securities (including additional Preferred Securities of
such series or of any other series) ranking on a parity with or prior to the
Preferred Securities of such series as to dividends or distributions of assets
upon liquidation; (ix) the voting rights, if any, of Preferred Securities of
such series; and (x) any other relative rights, powers and duties as shall not
be inconsistent with the L.L.C. Agreement. In connection with the foregoing the
Managing Member is authorized to take any action, including amendment of the
L.L.C. Agreement, without the vote or approval of any holder of Preferred
Securities (other than the requisite vote or approval, if any, of holders of any
outstanding series of Preferred Securities to the extent provided in the Action
relating to such series), including any Action to create under the provisions of
the L.L.C. Agreement a class (or series of a class) or group of Membership
Securities that was not previously outstanding.
All Preferred Securities of any one series shall be identical with each
other in all respects, except that Preferred Securities of any one series issued
at different times may differ as to the dates from which dividends, if any,
thereon shall be cumulative. All series of Preferred Securities shall rank
equally and be identical in all respects, except as permitted by the L.L.C.
Agreement provisions summarized in the preceding paragraph, and all Preferred
Securities shall rank senior to the Common Securities both as to dividends and
upon liquidation. The Common Securities are also subject to all the rights,
powers and duties of the Preferred Securities as are established in the L.L.C.
Agreement and as shall be established in any Actions of the Managing Member
pursuant to the authority summarized in the preceding paragraph.
All Preferred Securities offered hereby will be guaranteed by Protective
Life to the limited extent set forth below under "Guarantee" and will also be
exchangeable, at the option of PLC Capital and Protective Life, for Subordinated
Debentures under certain limited circumstances. Certain Federal income tax
considerations applicable to any offering of Preferred Securities will be
described in the Prospectus Supplement relating thereto.
DESCRIPTION OF CERTAIN CONTRACTUAL BACK-UP OBLIGATIONS OF PROTECTIVE LIFE
THE GUARANTEE
Protective Life by an irrevocable and unconditional agreement (the
"Guarantee"), will agree, to the limited extent set forth herein and in the
related Prospectus Supplement, to pay in full, to the holders of Preferred
Securities of any series, the Guarantee Payments (as defined below), as and when
due, regardless of any defense, right of set-off or counterclaim which PLC
Capital may have or assert. The Guarantee will constitute a guarantee of payment
and may be enforced by holders of Preferred Securities directly against
Protective Life. The following payments to the extent not made by PLC Capital
(the "Guarantee Payments") will be subject to the Guarantee (without
duplication): (i) any accrued and unpaid dividends which have theretofore been
declared on the Preferred Securities of such series out of funds held by PLC
Capital and legally available therefor; (ii) the redemption price (including all
accrued and unpaid dividends whether or not declared) payable, out of funds held
by PLC Capital and legally available therefor, with respect to any Preferred
Securities of such series called for redemption; and (iii) in the event of any
liquidation, dissolution or winding-up of PLC Capital, the lesser of (a) the
aggregate of the liquidation preference of the Preferred Securities of such
series and all accrued and unpaid dividends (whether or not declared) to the
date of payment and (b) the amount of remaining assets of PLC Capital legally
available to holders of Preferred Securities of such series. In addition,
Protective Life will unconditionally and irrevocably guarantee, in the event of
any exchange by PLC Capital of Preferred Securities for Subordinated Debentures
(to the extent permitted by the Actions for such Preferred Securities), delivery
of certificates representing the proper amount of such Subordinated
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Debentures in conformity with the Actions for such series. Protective Life's
obligation to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by Protective Life to the holders of Preferred Securities of
such series or by causing PLC Capital to pay such amounts to such holders. The
Prospectus Supplement relating to a series of Preferred Securities will describe
any additional covenants or other terms of the Guarantee with respect to such
series. The Guarantee will rank PARI PASSU with Subordinated Debentures and,
accordingly, will be subordinate and junior in right of payment to all Senior
Indebtedness in a manner identical to that described under "Description of Debt
Securities of Protective Life -- Subordination under the Subordinated
Indenture". A copy of the Payment and Guarantee Agreement pursuant to which the
Guarantee will be made will be filed as an exhibit to the Registration Statement
of which this Prospectus forms a part.
SUBORDINATED DEBENTURES
Protective Life will issue Subordinated Debentures to PLC Capital to
evidence the loans to be made by PLC Capital of the proceeds of (i) Preferred
Securities of each series and (ii) Common Securities and related capital
contributions ("Common Securities Payments"). See "Description of Debt
Securities of Protective Life" for a summary of the material provisions of the
Subordinated Indenture, under which the Subordinated Debentures will be issued.
References to provisions of the Subordinated Indenture in this Prospectus and in
the relevant Prospectus Supplement are qualified in their entirety by reference
to the text of the Subordinated Indenture, a form of which will be filed as an
exhibit to the Registration Statement of which this Prospectus forms a part. The
aggregate dollar amount of the Subordinated Debentures relating to Preferred
Securities of any series will be set forth in the Prospectus Supplement for such
series and will equal the aggregate liquidation preference of the Preferred
Securities of such series, together with the related Common Securities Payments.
PLAN OF DISTRIBUTION
Protective Life may sell any of the Debt Securities and Preferred Stock, and
PLC Capital may sell any of the or Preferred Securities, being offered hereby in
any one or more of the following ways from time to time: (i) through agents;
(ii) to or through underwriters; (iii) through dealers; and (iv) directly by
Protective Life or PLC Capital, as the case may be, to purchasers.
The distribution of the Offered Securities may be effected from time to time
in one or more transactions at a fixed price or prices, which may be changed, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
Offers to purchase Offered Securities may be solicited by agents designated
by Protective Life or PLC Capital, as the case may be, from time to time. Any
such agent involved in the offer or sale of the Offered Securities in respect of
which this Prospectus is delivered will be named, and any commissions payable by
Protective Life or PLC Capital to such agent will be set forth, in the
applicable Prospectus Supplement. Unless otherwise indicated in such Prospectus
Supplement, any such agent will be acting on a reasonable best efforts basis for
the period of its appointment. Any such agent may be deemed to be an
underwriter, as that term is defined in the Securities Act, of the Offered
Securities so offered and sold.
If Offered Securities are sold by means of an underwritten offering,
Protective Life and/or PLC Capital will execute an underwriting agreement with
an underwriter or underwriters at the time an agreement for such sale is
reached, and the names of the specific managing underwriter or underwriters, as
well as any other underwriters, and the terms of the transaction, including
commissions, discounts and any other compensation of the underwriters and
dealers, if any, will be set forth in the Prospectus Supplement which will be
used by the underwriters to make resales of the Offered Securities in respect of
which this Prospectus is delivered to the public. If underwriters are utilized
in the sale of the Offered Securities in respect of which this Prospectus is
delivered, the Offered Securities will be acquired by the underwriters for their
own account and may be resold from time to time in one or more transactions,
including negotiated transactions, at fixed public offering prices or at varying
prices determined by the underwriter at the time of sale. Offered Securities may
be offered to the public either
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through underwriting syndicates represented by managing underwriters or directly
by the managing underwriters. If any underwriter or underwriters are utilized in
the sale of the Offered Securities, unless otherwise indicated in the Prospectus
Supplement, the underwriting agreement will provide that the obligations of the
underwriters are subject to certain conditions precedent and that the
underwriters with respect to a sale of Offered Securities will be obligated to
purchase all such Offered Securities if any are purchased.
If a dealer is utilized in the sale of the Offered Securities in respect of
which this Prospectus is delivered, Protective Life or PLC Capital, as the case
may be, will sell such Offered Securities to the dealer as principal. The dealer
may then resell such Offered Securities to the public at varying prices to be
determined by such dealer at the time of resale. Any such dealer may be deemed
to be an underwriter, as such term is defined in the Securities Act, of the
Offered Securities so offered and sold. The name of the dealer and the terms of
the transaction will be set forth in the Prospectus Supplement relating thereto.
Offers to purchase Offered Securities may be solicited directly by
Protective Life or PLC Capital, as the case may be, and the sale thereof may be
made by Protective Life or PLC Capital, as the case may be, directly to
institutional investors or others, who may be deemed to be underwriters within
the meaning of the Securities Act with respect to any resale thereof. The terms
of any such sales will be described in the Prospectus Supplement relating
thereto.
Agents, underwriters and dealers may be entitled under relevant agreements
to indemnification or contribution by Protective Life and/or PLC Capital against
certain liabilities, including liabilities under the Securities Act.
Agents, underwriters and dealers may be customers of, engage in transactions
with, or perform services for, Protective Life and its subsidiaries (including
PLC Capital) in the ordinary course of business.
Offered Securities may also be offered and sold, if so indicated in the
Prospectus Supplement, in connection with a remarketing upon their purchase, in
accordance with a redemption or repayment pursuant to their terms, or otherwise,
by one or more firms ("remarketing firms"), acting as principals for their own
accounts or as agents for Protective Life or PLC Capital, as the case may be.
Any remarketing firm will be identified and the terms of its agreement, if any,
with Protective Life or PLC Capital and its compensation will be described in
the Prospectus Supplement. Remarketing firms may be deemed to be underwriters,
as such term is defined in the Securities Act, in connection with the Offered
Securities remarketed thereby. Remarketing firms may be entitled under
agreements which may be entered into with Protective Life to indemnification or
contribution by Protective Life and/or PLC Capital against certain civil
liabilities, including liabilities under the Securities Act, and may be
customers of, engage in transactions with or perform services for Protective
Life and its subsidiaries (including PLC Capital) in the ordinary course of
business.
If so indicated in the applicable Prospectus Supplement, Protective Life or
PLC Capital, as the case may be, may authorize agents, underwriters or dealers
to solicit offers by certain institutions to purchase Offered Securities from
Protective Life or PLC Capital, as the case may be, at the public offering
prices set forth in the applicable Prospectus Supplement pursuant to delayed
delivery contracts ("Contracts") providing for payment and delivery on a
specified date or dates. A commission indicated in the applicable Prospectus
Supplement will be paid to underwriters, dealers and agents soliciting purchases
of Offered Securities pursuant to Contracts accepted by Protective Life.
LEGAL OPINIONS
Unless otherwise indicated in the applicable Prospectus Supplement, the
validity of any Debt Securities and Preferred Stock of Protective Life offered
hereby and of the Guarantee and the Subordinated Debentures relating to any
Preferred Securities of PLC Capital offered hereby will be passed upon for
Protective Life by Debevoise & Plimpton, 875 Third Avenue, New York, New York
and for any
17
<PAGE>
underwriters or agents by Sullivan & Cromwell, 125 Broad Street, New York, New
York. The validity of any Preferred Securities of PLC Capital will be passed
upon by Richards, Layton & Finger, P.A., special Delaware counsel to Protective
Life.
EXPERTS
The consolidated balance sheets of Protective Life as of December 31, 1993
and 1992 and the related consolidated statements of income, stockholder's equity
and cash flows for each of the three years in the period ended December 31, 1993
and the related financial statement schedules which are incorporated by
reference or included in Protective Life's Annual Report on Form 10-K for the
year ended December 31, 1993 and which have been incorporated by reference in
this Prospectus, have been incorporated herein in reliance on the report, which
includes an explanatory paragraph with respect to changes in Protective Life's
methods of accounting for certain investments in debt and equity securities in
1993 and postretirement benefits other than pensions in 1992, of Coopers &
Lybrand, independent accountants, given on the authority of that firm as experts
in accounting and auditing.
The financial statements of Wisconsin National Life Insurance Company as of
December 31, 1992 and 1991, and for each of the years in the two year period
ended December 31, 1992, incorporated by reference in or included in Protective
Life's Current Report on Form 8-K, dated August 4, 1993, have been incorporated
herein by reference in reliance upon the reports of KPMG Peat Marwick,
independent certified public accountants, incorporated by reference herein, and
upon the authority of said firm as experts in accounting and auditing.
18
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
Securities and Exchange Commission filing fee..................... $ 60,345
Rating agency fees*...............................................
Fees and expenses of Trustee*.....................................
Blue Sky and legal investment fees and expenses*..................
Printing and engraving expenses engraving*........................
Accountant's fees and expenses*...................................
Legal fees and expenses*..........................................
Miscellaneous expenses*...........................................
---------
Total......................................................... $
---------
---------
<FN>
- ------------------------
*Estimated
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 6.5 of Article VI of Protective Life's Restated Certificate of
Incorporation provides that Protective Life shall indemnify to the fullest
extent permitted by law any person who is made or is threatened to be made a
party or is involved in any action, suit, or proceeding whether civil, criminal,
administrative or investigative by reason of the fact that he is or was a
director, officer, employee or agent of Protective Life or was serving at the
request of Protective Life as an officer, director, employee or agent of another
corporation, partnership, joint venture, enterprise, or nonprofit entity.
Protective Life is empowered by Section 145 of the Delaware General
Corporation Law, subject to the proceedings and limitations stated therein, to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of Protective Life) by reason of the fact that such person is or was
an officer, employee, agent or director of Protective Life, or is or was serving
at the request of Protective Life as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of Protective
Life, and, with respect to any criminal action or proceeding, had no reasonable
cause to believe his conduct was unlawful. Protective Life may indemnify any
such person against expenses (including attorneys' fees) in an action by or in
the right of Protective Life under the same conditions, except that no
indemnification is permitted without judicial approval if such person is
adjudged to be liable to Protective Life. To the extent such person is
successful on the merits or otherwise in the defense of any action referred to
above, Protective Life must indemnify him against the expenses which he actually
and reasonably incurred in connection therewith.
Policies of insurance are maintained by Protective Life under which
directors and officers of Protective Life are insured, within the limits and
subject to the limitations of the policies, against certain expenses in
connection with the defense of actions, suits or proceedings, and certain
liabilities which might be imposed as a result of such actions, suits or
proceedings, to which they are parties by reason of being or having been such
directors or officers.
As permitted by Section 102 (b)(7) of the Delaware General Corporation Law,
Protective Life's Restated Certificate of Incorporation also provides that no
director shall be personally liable to Protective Life or its stockholders for
monetary damages for any breach of fiduciary duty by such director as a
director, except (i) for breach of the director's duty of loyalty to Protective
Life or its stockholders, (ii) for
II-1
<PAGE>
acts or omissions not in good faith which involve intentional misconduct or a
knowing notation of law, (iii) under Section 174 of the Delaware General
Corporation Law or (iv) for any transaction from which the director derived an
improper personal benefit.
Protective Life has entered into indemnity agreements with each of its
directors which provide insurance protection in excess of the directors' and
officers' liability insurance maintained by Protective Life and in force at the
time up to $20 million and against certain liabilities excluded from such
liability insurance. The agreements provide generally that, upon the happening
of certain events constituting a change in control of Protective Life,
Protective Life must obtain a $20 million letter of credit upon which the
directors may draw for defense or settlement of any claim relating to
performance of their duties as directors. Protective Life has similar agreements
with certain of its executive officers under which Protective Life is required
to provide up to $10 million in indemnification, although this obligation is not
secured by a commitment to obtain a letter of credit.
ITEM 16. EXHIBITS.
See Index to Exhibits.
ITEM 17. UNDERTAKINGS.
(A) RULE 415 OFFERING.
The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (1)(i) and (1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by Protective
Life pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(B) FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY REFERENCE.
The undersigned registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
II-2
<PAGE>
(C) RULE 430A OFFERING.
The undersigned hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of a registration statement in reliance upon Rule 430A and contained in the
form of prospectus filed by Protective Life pursuant to Rule 424(b) (1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of the
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(D) ACCELERATION OF EFFECTIVENESS.
Insofar as indemnifications for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons, if any,
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by Protective Life of expenses
incurred or paid by a director, officer or controlling person of Protective Life
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-3
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, PROTECTIVE LIFE
CORPORATION CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS
ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED, IN THE CITY OF BIRMINGHAM, STATE OF ALABAMA, ON MARCH , 1994.
PROTECTIVE LIFE CORPORATION
(Registrant)
By:
--------------------------------------
President and Chief Executive
Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, PLC CAPITAL
L.L.C. CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF
THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF BIRMINGHAM, STATE OF ALABAMA, ON MARCH , 1994.
PLC CAPITAL L.L.C.
(Registrant)
By PROTECTIVE LIFE CORPORATION
as Managing Member
By:
--------------------------------------
President and Chief Executive
Officer
II-4
<PAGE>
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES WITH PROTECTIVE LIFE CORPORATION AND THE MANAGING MEMBER INDICATED:
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
- --------------------------------------------- ---------------------------------- ------------------------------
<C> <S> <C>
/s/ DRAYTON NABERS, JR. President and Chief Executive
---------------------------------- Officer (Principal Executive March , 1994
Drayton Nabers, Jr. Officer) and Director
/s/ JOHN D. JOHNS Executive Vice President and Chief
---------------------------------- Financial Officer (Principal March , 1994
John D. Johns Financial Officer)
/s/ JERRY W. DEFOOR Vice President and Controller and
---------------------------------- Chief Accounting Officer March , 1994
Jerry W. DeFoor (Principal Accounting Officer)
/s/ WILLIAM J. RUSHTON III
---------------------------------- Chairman of the Board and Director
William J. Rushton III
*
---------------------------------- Director
John W. Woods
*
---------------------------------- Director
Crawford T. Johnson III
*
---------------------------------- Director
William J. Cabaniss, Jr.
*
---------------------------------- Director
H.G. Pattillo
*
---------------------------------- Director
Edward L. Addison
*
---------------------------------- Director
John J. McMahon, Jr.
*
---------------------------------- Director
A.W. Dahlberg
*
---------------------------------- Director
John W. Rouse, Jr.
*
---------------------------------- Director
Robert T. David
*
---------------------------------- Director
Ronald L. Kuehn, Jr.
*
---------------------------------- Director
Herbert A. Sklenar
*By DEBORAH J. LONG
---------------------------
( )
Attorney-in-Fact
March 25, 1994
</TABLE>
II-5
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
EXHIBITS
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------
PROTECTIVE LIFE CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
PLC CAPITAL L.L.C.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT PAGE
NUMBER DESCRIPTION NO.
- ----------- ---------------------------------------------------------------------------------------------------- -----
<S> <C> <C>
*1(a) Form of Underwriting Agreement -- Debt Securities
*1(b) Form of Underwriting Agreement -- Preferred Stock
*1(c) Form of Underwriting Agreement -- Preferred Securities
4(a) 1985 Restated Certificate of Incorporation of Protective Life Corporation (incorporated by reference
to Exhibit 3(a) to Protective Life Corporation's Form 10-K Annual Report for the year ended
December 31, 1993).................................................................................
4(a)(1) Certificate of Amendment of 1985 Restated Certificate of Incorporation of Protective Life
Corporation (incorporated by reference to Exhibit 3(a)(1) to Protective Life Corporation's Form
10-K Annual Report for the year ended December 31, 1993)...........................................
4(a)(2) Certificate of Designation of Junior Participating Cumulative Preferred Stock of Protective Life
Corporation filed with the Secretary of State of Delaware on July 14, 1987 (incorporated by
reference to Exhibit A to Protective Life Corporation's Form 8-K Report filed July 15, 1987).......
4(a)(3) Certificate of Correction of Certificate of Designation of Junior
Participating Cumulative Preferred Stock of the Company filed with the Secretary of State of
Delaware on July 27, 1987 (incorporated by reference to Exhibit 3(a)(4) to Protective Life
Corporation's Form 10-K Annual Report for the year ended December 31, 1987)........................
4(b) Amended By-Laws of Protective Life Corporation, as amended (incorporated by reference to Exhibit B
to Protective Life Corporation's Form 8-K Report, filed May 18, 1983)..............................
4(c) Certificate of Formation of PLC Capital L.L.C.......................................................
4(d) Limited Liability Company Agreement of PLC Capital L.L.C............................................
*4(e) Form of Indenture, dated as of , 1994, between Protective Life Corporation and The Bank of
New York, as Trustee...............................................................................
*4(f) Form of Subordinated Indenture, dated as of , 1994, between Protective Life Corporation and
AmSouth Bank NA, as Trustee........................................................................
*4(g) Form of Payment and Guarantee Agreement between Protective Life Corporation and PLC Capital
L.L.C..............................................................................................
*5(a) Opinion of Debevoise & Plimpton, counsel to Protective Life Corporation and PLC Capital L.L.C., as
to legality of the Debt Securities, the Preferred Stock and the Guarantee..........................
*5(b) Opinion of Richards, Layton & Finger, special Delaware counsel to Protective Life Corporation, as to
legality of the Cumulative Monthly Income Preferred Securities.....................................
*8(a) Opinion of Debevoise & Plimpton, as to United States tax matters....................................
12(a) Computation of Ratio of Earnings to Fixed Charges...................................................
23(a) Consent of Coopers & Lybrand........................................................................
23(b) Consent of KPMG Peat Marwick........................................................................
*23(c) Consent of Debevoise & Plimpton (included in Exhibits 5(a) and 8(a))................................
*23(d) Consent of Richards, Layton & Finger (included in Exhibit 5(b)).....................................
24(c) Power of Attorney of Board of Directors.............................................................
25(a) Statement of Eligibility of Trustee on Form T-1 (The Bank of New York)..............................
25(b) Statement of Eligibility of Trustee on Form T-1 (AmSouth Bank NA)...................................
</TABLE>
- ------------------------
* To be filed by amendment.
<PAGE>
Exhibit 4(c)
CERTIFICATE OF FORMATION
OF
PLC CAPITAL L.L.C.
This Certificate of Formation of PLC Capital L.L.C. ("PLC Capital"),
dated as of March 24, 1994, is being duly executed and filed by Protective Life
Corporation, as an authorized person, to form a limited liability company under
the Delaware Limited Liability Company Act (Del. Code Ann. tit. 6 18-101, et
seq.).
1. The name of the limited liability company formed hereby is PLC
Capital L.L.C.
2. The address of PLC Capital's registered office in the State of
Delaware is c/o The Corporation Trust Company, Corporation Trust Center, 1209
Orange Street in the City of Wilmington, County of New Castle, Delaware 19801.
The name of PLC Capital's registered agent for service of process in the State
of Delaware at such address is The Corporation Trust Company.
3. The latest date on which PLC Capital is to dissolve is December
31, 2094.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Formation of PLC Capital L.L.C. as of the date first above written.
PROTECTIVE LIFE CORPORATION
By:/s/ John D. Johns
Name: John D. Johns
Title: Executive Vice
President and
Chief Financial
Officer
<PAGE>
Exhibit 4(d)
===============================================================================
PLC CAPITAL L.L.C.
LIMITED LIABILITY COMPANY AGREEMENT
Dated March 24, 1994
===============================================================================
<PAGE>
LIMITED LIABILITY COMPANY AGREEMENT
THIS LIMITED LIABILITY COMPANY AGREEMENT of PLC CAPITAL
L.L.C. (the "Company"), dated March 24, 1994, is entered into by and
among Protective Life Corporation, a Delaware corporation
("Protective"), and Protective LLC Holding, Inc., a Delaware
corporation, and those other Persons who become Members of the Company
from time to time, as hereinafter provided.
In consideration of the mutual covenants herein contained
and other valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used in this Agreement shall have the
meanings set forth below or in the Section of this Agreement referred to
below:
"ACCOUNTING PERIOD" shall mean the period beginning on the
day following any Adjustment Date (or, in the case of the first
Accounting Period, beginning on the date of formation of the Company)
and ending on the next succeeding Adjustment Date.
"ACT" shall mean the Delaware Limited Liability Company Act,
Del. Code Ann. tit. 6 18-101 et seq. (as from time to time amended
and including any successor statute of similar import).
"ACTION" shall have the meaning set forth in Section 3.4.
"ADJUSTMENT DATE" shall mean any of (a) the last day of each
Fiscal Year, (b) the day before the date of admission of any additional
Member, (c) the day before the date any Capital Contribution is made or
deemed to be made, (d) the day before the date a Member ceases to be a
member of the Company, (e) the record date of any distribution by the
Company, or (f) any other date determined by the Class A Interest Holder
as appropriate for a closing of the Company's books.
"AFFILIATE" shall mean, with respect to any Person, any
Person directly or indirectly controlled by or controlling or under
common control with such Person (or any successor to any of the
foregoing). For the purpose of this definition, "control" when used
with respect to any Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have the meanings correlative to the
foregoing.
"AGREEMENT" shall mean this Limited Liability Company
Agreement of the Company, as it may be amended, restated or supplemented
from time to time as herein provided.
<PAGE>
"AVAILABLE CASH" shall mean the excess of (a) the cash and
short-term investments of the Company over (b) the aggregate of any
reserves established from time to time.
"CAPITAL ACCOUNT" shall have the meaning set forth in
Section 3.6.
"CAPITAL CONTRIBUTIONS" shall mean the total amount of cash
and other property contributed to the Company by the Members pursuant to
Article III of this Agreement and, in the case of the Class A Interest
Holder the Class B Interest Holder, Section 6.2, as initial Capital
Contributions or additional Capital Contributions.
"CODE" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and any successor act thereto, and, to the
extent applicable, any Treasury Regulations promulgated thereunder.
"CLASS A INTEREST" shall mean the limited liability company
interests of Protective, as Class A Interest Holder, in the profits and
losses of the Company and its right to receive distributions of the
Company's assets.
"CLASS B INTEREST" shall mean the limited liability company
interests of Protective LLC Holding, Inc., as Class B Interest Holder,
in and to the profits and losses of the Company and its right to receive
distributions of the Company's assets.
"COMMON INTERESTS" shall mean the Class A Interest and the
Class B Interest.
"COMPANY" shall mean the limited liability company hereby
established in accordance with this Agreement by the parties hereto, as
such limited liability company may from time to time be constituted.
"COVERED PERSON" shall mean any Member, any Affiliate of a
Member or any officers, directors, shareholders, partners, employees,
representatives or agents of a Member or their respective Affiliates, or
any employee or agent of the Company or its Affiliates.
"DELAWARE CERTIFICATE" shall mean the Certificate of
Formation of the Company as provided for pursuant to the Act, as
originally filed with the office of the Secretary of State of the State
of Delaware, as amended and restated from time to time as herein
provided.
"EFFECTIVE DATE" shall have the meaning set forth in Section
2.5.
"FISCAL YEAR" shall mean the period beginning the Effective
Date and ending December 31, 1994 and thereafter shall mean the annual
period beginning each January 1 and ending the following December 31.
The Company shall have the same fiscal year for financial accounting
purposes and United States Federal income tax, except as otherwise
required by the Code.
"HOLDER" shall mean, as of any date, in the case of (a) the
Class A Interest, Protective, (b) the Class B Interest, Protective LLC
Holding, Inc. and (c) any Preferred Security, the Person in whose name
the interest in and to the profits and losses of the Company and right
to receive distributions of the Company's assets established pursuant to
the Action or Actions relating to such Preferred Security is registered
on the Register.
2
<PAGE>
"INDEMNIFIED PERSON" shall mean the Class A Interest Holder,
any Affiliate of the Class A Interest Holder or any officers, directors,
shareholders, partners, employees, representatives or agents of the
Class A Interest Holder, or any employee or agent of the Company or its
Affiliates.
"LIQUIDATION PREFERENCE" shall mean, with respect to any
Preferred Security, the liquidation preference for such security
pursuant to the Action or Actions establishing such Preferred Security
pursuant to Section 3.4.
"MEMBER" shall mean, as of any date, any Person who has (i)
been admitted as a member of the Company pursuant to Section 3.1 of this
Agreement and (ii) has not ceased to be a member of the Company pursuant
to Section 3.2.
"NET PROFITS" or "NET LOSSES" shall mean, for any Accounting
Period, the net profits or net losses, as the case may be, of the
Company for such Accounting Period, determined on the accrual basis
method of accounting in accordance with generally accepted accounting
principles.
"OUTSTANDING" means, when used with respect to any series of
Preferred Securities as of any date, the Preferred Securities of such
series theretofore executed and delivered by the Class A Interest Holder
on behalf of the Company pursuant to this Agreement except:
(i) Preferred Securities theretofore cancelled by the
Registrar or delivered to the Registrar for cancellation as
permitted by the Action relating to such series;
(ii) Preferred Securities or portions thereof for
which the amount of the final distribution to be made
thereon is on deposit with the depositary for such series of
Preferred Securities in trust for the Holders of such
Preferred Securities as provided for in the Action relating
to such series); and
(iii) Preferred Securities alleged to have been
destroyed, lost, mutilated or stolen for which replacement
Preferred Securities have been issued pursuant to the Action
relating to such series.
"PERCENTAGE INTEREST" shall mean with respect to the Holder
of any class or series of Preferred Securities, the ratio that such
Holder's aggregate total Liquidation Preference of such series bears to
the aggregate total Liquidation Preferences of all the Holders of such
class or series of interest.
"PERSON" shall mean any individual or any general
partnership, limited partnership, corporation, joint venture, trust,
limited liability company, business trust, cooperative or association,
and the heirs, executors, administrators, legal representatives,
successors and assigns of such Person where the context so admits.
"PREFERRED SECURITIES" shall have the meaning set forth in
Section 3.4.
"PROTECTIVE" shall have the meaning set forth in the
recitals to this Agreement.
"REGISTRAR" shall mean the Class A Interest Holder or any
Person appointed by the Class A Interest Holder to keep a registry of
the limited liability company interests in the Company.
3
<PAGE>
"REGISTER" shall mean have the meaning set forth in Section
8.1.
"TAX MATTERS PARTNER" shall have the meaning set forth in
Section 8.2(c).
"TRANSFER" shall have the meaning set forth in Section 7.1.
"TREASURY REGULATIONS" shall mean the Federal income tax
regulations, including any temporary or proposed regulations,
promulgated under the Code, as such Treasury Regulations may be amended
from time to time (it being understood that all references herein to
specific sections of the Treasury Regulations shall be deemed also to
refer to any corresponding provisions of succeeding Treasury
Regulations).
ARTICLE II
THE COMPANY
Section 2.1 FORMATION. The Class A Interest Holder and the
Class B Interest Holder, by execution of this Agreement and the filing
of the Delaware Certificate, hereby enter into and join together in, and
do hereby form, the Company as a limited liability company under and
pursuant to the Act.
Section 2.2 COMPANY NAME. The name of the Company shall be
"PLC Capital L.L.C.". The business of the Company shall be conducted
under such name or such other names as the Class A Interest Holder may
from time to time determine in its sole discretion.
Section 2.3 THE DELAWARE CERTIFICATE, ETC. The Class A
Interest Holder is hereby designated as an "authorized person," within
the meaning of the Act, and shall execute and file the Delaware
Certificate with the Secretary of State of the State of Delaware. The
Class A Interest Holder hereby agrees to execute, file and record all
such other certificates and documents, including amendments to the
Delaware Certificate, and to do such other acts as may be appropriate to
comply with all requirements for the formation, continuation and
operation of a limited liability company, the ownership of property, and
the conduct of business under the laws of the State of Delaware and any
other jurisdiction in which the Company may own property or conduct
business.
Section 2.4 REGISTERED OFFICE AND REGISTERED AGENT. The
registered office of the Company shall be c/o The Corporation Trust
Company, Corporation Trust Center, 1209 Orange Street, Wilmington, New
Castle County, Delaware 19801. The registered agent for service of
process on the Company in the State of Delaware shall be The Corporation
Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington,
New Castle County, Delaware 19801. The registered office and the
registered agent of the Company may be changed by the Class A Interest
Holder from time to time in accordance with the then applicable
provisions of the Act and any other applicable laws.
Section 2.5 TERM OF COMPANY. The term of the Company shall
commence on the date of the initial filing of the Delaware Certificate
with the office of the Secretary of State of the State of Delaware (the
"Effective Date"), and shall continue until December 31, 2094, unless it
is sooner dissolved pursuant to provisions of Article IX of this
Agreement.
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Section 2.6 PURPOSES. The Company is formed for the object
and purpose of issuing its interests and lending the proceeds thereof to
Protective or its subsidiaries in return for debentures or other written
evidences of indebtedness in aggregate principal amounts equal to the
amounts of such loans, bearing interest at a rate at least equal to the
periodic distribution rate, if any, established for the limited
liability company interests the proceeds of which are used to make such
loans, and engaging in any and all activities that may be incidental or
conducive to the foregoing. The Company shall not engage in any other
business or activity.
Section 2.7 POWERS. In furtherance of its purposes, but
subject to all of the provisions of this Agreement, the Company, and the
Class A Interest Holder on behalf of the Company, shall have the power
and is hereby authorized to:
(a) execute, file and deliver any registration
statements, amendments and other documents and enter into
agreements relating to the issuance and sale by the Company
of its Preferred Securities;
(b) loan money to Protective or its Affiliates
pursuant to one more loan agreements and exercise all of the
powers, duties, rights and responsibilities associated
therewith;
(c) take any and all actions necessary, convenient or
appropriate as lender, including, subject to the provisions
hereof, the granting or approval of waivers, consents or
amendments of rights or powers relating thereto and the
execution of appropriate documents to evidence such waivers,
consents or amendments;
(d) invest any funds of the Company pending dis-
tribution or payment of the same pursuant to the provisions
of this Agreement;
(e) determine and make distributions, in cash or
otherwise, to Members, in accordance with the provisions of
this Agreement and of the Act;
(f) establish or set aside in its sole discretion any
reserve or reserves for contingencies and for any other
proper Company purpose;
(g) enter into, perform and carry out contracts of
any kind, including, without limitation, contracts with any
Person affiliated with any of the Members, necessary to, in
connection with, or incidental to the accomplishment of the
purposes of the Company;
(h) employ or otherwise engage employees and agents
(who may be designated as officers with titles) and mana-
gers, contractors, advisors and consultants and pay
reasonable compensation for such services; and
(i) do such other things and engage in such other
activities as may be necessary, convenient or advisable with
respect to the conduct of the business of the Company, and
have and exercise all of the powers and rights conferred
upon limited liability companies formed pursuant to the Act.
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Notwithstanding any other provisions of this Agreement, the
Company and the Class A Interest Holder on behalf of the Company may
enter into and execute, deliver, acknowledge and perform a registration
statement and any amendments and supplements thereto, one or more
underwriting agreements, one or more indentures relating to any loans
made by the Company to Protective, a payment and guarantee agreement and
any other contracts or agreements contemplated thereby, or specifically
described therein, all without any further act, approval or vote of the
Members.
The Class A Interest Holder is hereby authorized and
directed to conduct its affairs and to operate the Company in such a way
that the Company would not be deemed to be an "investment company"
required to be registered under the Investment Company Act of 1940 or
taxed as a corporation for federal income tax purposes and so that any
loans made by the Company to Protective or its subsidiaries will be
treated as indebtedness for federal income tax purposes. In this
connection, the Class A Interest Holder is authorized to take any action
that the Class A Interest Holder determines, in its sole discretion, to
be necessary or desirable for such purposes that (i) is not inconsistent
with applicable law, the Delaware Certificate or this Agreement and (ii)
does not materially adversely affect the holders of any Preferred
Securities Outstanding.
Section 2.8 MERGER OR CONSOLIDATION. The Company may not
consolidate or merge with, or convey, transfer or lease its properties
and assets substantially as an entirety to any corporation or other body
or entity, except pursuant to this Section 2.8, and subject to any
additional restrictions or requirements under any Action or Actions
establishing any series of Preferred Securities. The Class A Interest
Holder may, for purposes of changing the Company's state of domicile,
without the consent of the Holders of any series of Preferred Securities
or the Class B Interest, cause the Company to consolidate or merge with
or into a limited liability company, business trust or limited
partnership formed under the laws of any state of the United States;
provided that (a) such successor limited liability company or limited
partnership expressly assumes all of the obligations of the Company
under any series of Preferred Securities then outstanding, (b)
Protective expressly acknowledges such successor as the holder of the
loans to Protective pertaining to each series of Preferred Securities
then outstanding, (c) such merger or consolidation does not cause any
series of Preferred Securities then outstanding to be delisted by any
national securities exchange or other organization on which such
Preferred Securities are then listed, (d) Holders of then outstanding
Preferred Securities (including, for purposes of this Section 2.8,
beneficial owners of outstanding Preferred Securities) will not
recognize any gain or loss for federal income tax purposes as a result
of such merger or consolidation and (e) following such merger or
consolidation, Protective and such successor limited liability company
or limited partnership are and will be in compliance with the Investment
Company Act of 1940, as amended.
ARTICLE III
MEMBERS; CAPITALIZATION CONTRIBUTIONS
Section 3.1 ADMISSION OF MEMBERS. (a) By execution of
this Agreement, the Class A Interest Holder and the Class B Interest
Holder are hereby admitted as members of the Company and shall have such
rights in and to the profits and losses of the Company and rights to
receive distributions of the Company's assets, and such other rights and
obligations, as provided herein.
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(b) Without execution of this Agreement, upon the issuance
of Preferred Securities as provided in this Article and payment by a
Person for the Preferred Securities acquired by it, which payment
constitutes a request by such Person that the Register reflect its
admission as a member of the Company, such Person shall be admitted to
the Company as a Member and shall become bound by this Agreement, and
the Register shall be adjusted to reflect such admission.
(c) If a Holder of any Preferred Securities transfers any
such Preferred Securities pursuant to Section 7.2, the transferee of
such Preferred Securities shall, without execution of this Agreement or
the consent of any Member, upon its acquisition of Preferred Securities
and its written request that the Register reflect its admission as a
member of the Company, be admitted to the Company as a member of the
Company and become bound by this Agreement, and the Register shall be
adjusted to reflect such transfer and admission.
Section 3.2 CESSATION OF MEMBERSHIP. No Member shall
resign from the Company prior to the dissolution and winding up of the
Company. A Preferred Security Holder shall cease to be a member of the
Company upon a transfer of its entire limited liability company interest
in compliance with this Agreement or upon the redemption of such
Holder's entire limited liability company interest in the Company as
provided herein.
Section 3.3 COMMON INTERESTS. (a) CLASS A INTEREST. (i)
INITIAL CAPITAL CONTRIBUTIONS. As of the date hereof, the Class A
Interest Holder shall have contributed $7,500 to the Company as its
initial Capital Contribution.
(ii) ADDITIONAL CAPITAL CONTRIBUTIONS OF CLASS A
INTEREST HOLDER. Upon the issuance of any Preferred
Securities, the Class A Interest Holder shall make
additional Capital Contributions to the Company such that,
as of any Adjustment Date, that the total Capital
Contributions of the Class A Interest Holder shall equal not
less than 20% of the total Capital Contributions of all the
Members.
(iii) FORM OF CLASS A INTEREST. The Class A Interest
shall not be evidenced by certificate or other written
instrument, but shall only be evidenced by this Agreement.
(iv) CLASS A INTEREST HOLDER AS PREFERRED SECURITIES
HOLDER. Subject to the terms of any Action or Actions
establishing a series of Preferred Securities and applicable
law (including, without limitation, United States federal
securities laws), the Class A Interest Holder and its
subsidiaries may at any time and from time to time purchase
outstanding Preferred Securities (or beneficial interests
therein) by tender, in the open market or by private
agreement.
(b) CLASS B INTEREST. (i) INITIAL CAPITAL CONTRIBUTIONS.
As of the date hereof, the Class B Interest Holder shall have
contributed $2,500 to the Company as its initial Capital Contribution.
(ii) ADDITIONAL CAPITAL CONTRIBUTIONS OF CLASS B
INTEREST HOLDER. Upon the issuance of any Preferred
Securities, the Class B Interest Holder shall make
additional Capital Contributions to the Company such that,
as of any Adjustment Date, the total Capital Contributions
of the Class B Interest Holder shall equal not less than 1%
of the total Capital Contributions of all the Members.
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(iii) FORM OF INTEREST. The Class B Interest shall not
be evidenced by certificate or other written instrument, but
shall only be evidenced by this Agreement.
(iv) CLASS B INTEREST HOLDER AS PREFERRED SECURITIES
HOLDER. Subject to the terms of any Action or Actions
establishing a series of Preferred Securities and applicable
law (including, without limitation, United States federal
securities laws), the Class B Interest Holder and its
subsidiaries may at any time and from time to time purchase
outstanding Preferred Securities (or beneficial interests
therein) by tender, in the open market or by private
agreement.
Section 3.4 PREFERRED SECURITIES. (a) The Company is
authorized to issue preferred limited liability company interests having
such designations, stated value, rights, privileges, restrictions,
preferences and other terms and provisions as may from time to time be
established in a written action or actions (each, an "ACTION") of the
Class A Interest Holder providing for issue of such series as
hereinafter provided (such interests, the "PREFERRED SECURITIES") and
having terms generally consistent with those set forth in the Form of
Action attached as Annex A hereto (other than changes that would not
materially adversely affect the ability of the Company to make full and
timely periodic distributions or payments upon liquidation to the
holders of any Outstanding Preferred Securities). In connection with
the foregoing, subject to the provisions of this Section 3.4, the Class
A Interest Holder is expressly authorized to issue one or more series of
Preferred Securities, and with respect to each such series to establish
by Action or Actions providing for the issue of such series:
(i) the maximum number of Preferred Securities
to constitute such series and the distinctive
designation thereof;
(ii) whether the Preferred Securities of such
series shall have voting rights, in addition to any
voting rights provided by law, and, if so, the terms
of such voting rights;
(iii) the periodic distribution rate, if any, on
the Preferred Securities of such series, the
conditions and dates upon which such distributions
shall be payable, the preference or relation which
such distributions shall bear to the periodic
distributions payable on any other class or classes of
limited liability company interests in the Company or
on any other series of Preferred Securities, and
whether such distributions shall be cumulative or
noncumulative;
(iv) whether the Preferred Securities of such
series shall be subject to redemption by the Company,
and if made subject to redemption, the time, prices
and other terms and conditions of such redemption;
(v) the rights of the Holders of Preferred
Securities of such series upon the liquidation,
dissolution or winding up of the Company;
(vi) whether or not the Preferred Securities of
such series shall be subject to the operation of a
retirement or sinking fund and, if so, the extent to
and manner in which any such retirement or sinking
fund shall be applied to the purchase or redemption of
the Preferred Securities of such series for
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retirement or to other Company purposes and the terms
and provisions relative to the operation thereof;
(vii) whether or not the Preferred Securities of
such series shall be convertible into, or exchangeable
for, limited liability company interests of any other
class or classes, or of any other series of Preferred
Securities, or securities of any other kind, including
securities issued by the Class A Interest Holder or
any of its Affiliates, and if so convertible or
exchangeable, the price or prices or the rate or rates
of conversion or exchange and the method, if any, of
adjusting the same;
(viii) the limitations and restrictions, if any, to
be effective while any Preferred Securities of such
series are outstanding upon the payment of periodic
distributions or other distributions on, and upon the
purchase, redemption or other acquisition by the
Company of any other class or classes of limited
liability company interests or any other series of
Preferred Securities ranking junior to the Preferred
Securities of such series as to periodic distributions
or distributions of assets upon liquidation;
(ix) the conditions or restrictions, if any, upon the
creation of indebtedness of the Company or upon the issue of
any additional membership interests (including additional
Preferred Securities of such series or any other series)
ranking on a parity with or prior to the Preferred
Securities of such series as to periodic distributions or
distributions of assets upon liquidation; and
(x) such other relative rights, powers and duties
as shall not be inconsistent with this Section 3.4.
(b) All Preferred Securities of any one series shall be
identical with each other in all respects, except that Preferred
Securities of any one series issued at different times may differ as to
the dates from which periodic distributions, if any, thereon shall be
cumulative; and all other series of Preferred Securities shall rank
equally and be identical in all respects, except as permitted by
paragraph (a) of this Section 3.4; and all Preferred Securities shall
rank senior to the Class A Interest and the Class B Interest both as to
periodic distributions and distributions of assets upon liquidation.
(c) In connection with the foregoing and without limiting
the generality thereof, the Class A Interest Holder is hereby expressly
authorized to take any action, including amendment of this Agreement,
without the vote or approval of any Member, including any Action to
create under the provisions of this Agreement a class (or series of a
class) or group of limited liability company interests that was not
previously outstanding. Without the vote or approval of any Member, the
Class A Interest Holder may execute, swear to, acknowledge, deliver,
file and record whatever documents may be required in connection with
the issue from time to time of Preferred Securities in one or more
series as shall be necessary, convenient or desirable to reflect the
issue of such series. The Class A Interest Holder shall do all things
it deems to be appropriate or necessary to comply with the Act and is
authorized and directed to do all things it deems necessary or
permissible in connection with any future issuance, including compliance
with any statute, rule, regulation or guideline of any federal, state or
other governmental agency or any securities exchange.
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(d) Any Action or Actions of the Class A Interest Holder
pursuant to the provisions of this Section 3.4 shall constitute an
amendment and supplement to and part of this Agreement.
(e) In the event of the liquidation, dissolution or winding
up of the Company, before any payment or distributions of the assets of
the Company shall be made or set apart for the holders of any class or
classes of limited liability company interests in the Company ranking
junior to the Preferred Securities upon liquidation, the holders of the
Preferred Securities shall be entitled to receive payment of the amount
fixed in the Action or Actions establishing such series, plus, (if
periodic distributions on Preferred Securities shall be cumulative) an
amount equal to all periodic distributions (whether or not earned or
declared) accumulated or accrued to the date of final distribution to
such holders and no more. If, upon the liquidation, dissolution or
winding up of the Company, the assets of the Company, or proceeds
thereof, distributable among the Preferred Securities shall be
insufficient to pay in full the preferential amounts described above,
then such assets, or the proceeds thereof, shall be distributed among
the Preferred Securities Holders ratably in accordance with the
respective amounts that would be payable on their respective Preferred
Securities of all amount payable thereon were paid in full (taking into
account the relative rank of the respective series of Preferred
Securities). For the purpose of this paragraph (e), the voluntary sale,
conveyance, exchange or transfer (for cash, shares of stock,
securities,or other consideration) of all or substantially all of the
property or assets of the Company shall be deemed a voluntary
liquidation, dissolution or winding up of the Company, but a
consolidation or merger of the Company with one or more business
entities shall not be deemed to be a liquidation, dissolution or winding
up, voluntary or involuntary.
Section 3.5 CAPITAL ACCOUNTS. A separate capital account
(a "CAPITAL ACCOUNT") shall be established and maintained for each
Member, including any substituted or additional Member who shall
hereafter acquire an interest in the Company, in accordance with the
following provisions:
(a) To each Member's Capital Account there shall be
credited (i) the amount of cash and fair market value of the
property actually contributed by or on behalf of such Member
to the Company (including, in the case of any issue of any
series or class of Preferred Securities pursuant to Section
3.4, the proceeds of such issuance) and (ii) such Member's
allocable share of Net Profits.
(b) To each Member's Capital Account there shall be
debited (i) the amount of cash and the fair market value of
any property distributed to such Member pursuant to any
provision of this Agreement (including any Periodic
Distribution or any distribution in liquidation of any
Member's interest in the Company (whether in whole or in
part) and (ii) such Member's allocable share of Net Losses.
(c) A Member shall not be entitled to withdraw any
part of its Capital Account or to receive any distributions
from the Company except as provided in Article VI; nor shall
a Member be entitled to make any loan or Capital
Contribution to the Company other than as expressly provided
herein. No loan made to the Company by any Member shall
constitute a Capital Contribution to the Company for any
purpose.
(d) Except as required by the Act, no Member shall
have any liability for the return of the Capital
Contribution of any other Member. A Member who has more
than one limited liability company interest in the Company
shall have a single Capital
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Account that reflects all such interests, regardless of the
class of interest owned and regardless of the time or manner
in which the interests were acquired.
Section 3.6 TRANSFERS OF CAPITAL ACCOUNTS. Upon any
transfer of a limited liability company interest in the Company as
provided in this Agreement, the transferee shall succeed to the
allocable portion of the transferor's Capital Account.
ARTICLE IV
DISTRIBUTIONS
Section 4.1 PERIODIC DISTRIBUTIONS. (a) Holders of
Preferred Securities shall receive periodic distributions, if any, in
accordance with the Action or Actions establishing such series and the
applicable provisions of Section 3.4.
(b) The Common Interest Holders shall, subject to the terms
of any Action or Actions establishing a series of Preferred Securities,
and subject to the applicable provisions of Section 3.4 and the Act, be
entitled to receive periodic distributions as and when determined by the
Class A Interest Holder in its sole discretion.
Section 4.2 ALLOCATIONS OF PERIODIC DISTRIBUTIONS. Subject
to the terms of any Action or Actions establishing a series of Preferred
Securities, and subject to the applicable provisions of Section 3.4,
periodic distributions shall be made to the Common Interest Holders and
among the Common Interest Holders in accordance with their Percentage
Interests.
Section 4.3 RESTRICTED DISTRIBUTIONS. Notwithstanding any
provision to the contrary contained in this Agreement, the Company shall
not make a distribution to any Member on account of its limited
liability company interest in the Company if such distribution would
violate Section 18-607 of the Act or other applicable law.
ARTICLE V
ALLOCATIONS
Section 5.2 ALLOCATION OF NET PROFITS. Subject to the
terms of any Action or Actions establishing a series of Preferred
Securities, and subject to the applicable provisions of Section 3.4, the
Net Profits and Net Losses of the Company shall be allocated on the last
calendar day of each Accounting Period to the Class A Interest Holder
and the Class B Interest Holder and among the Class A Interest Holder
and the Class B Interest Holder in proportion to the positive balances
of their relative Capital Accounts.
Section 5.2 TAX ALLOCATIONS. Subject to the terms of any Action
or Actions establishing a series of Preferred Securities, for federal, state
and local income tax purposes, all income, gain, loss and deduction (and items
thereof) of the Company shall be allocated among the
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Members in a manner that will cause the algebraic sum (determined on
a cumulative basis from inception of the Company) of taxable income,
gain, loss and deduction allocated to any Member to represent the same
proportion of the algebraic sum (determined on a cumulative basis from
inception of the Company) of Net Profits and Net Losses allocated to
such Member as the algebraic sum (determined on a cumulative basis from
inception of the Company) of taxable income, gain, loss and deduction of
the Company (including for this purpose income deemed realized pursuant
in connection with any property distributed in kind) represents of the
algebraic sum (determined on a cumulative basis from inception of the
Company) of the Company's Net Profits and Net Losses. Notwithstanding
the foregoing, the Class A Interest Holder shall have the power to make
such allocations for federal, state and local income tax purposes as may
be necessary to maintain substantial economic effect, or to insure that
such allocations are in accordance with the interests of the Members in
the Company, in each case within the meaning of the Code and any
Treasury Regulations thereunder. All matters concerning allocations for
federal, state and local income tax purposes, including accounting
procedures, not expressly provided for by the terms of this Agreement
shall be equitably determined in good faith by Class A Interest Holder.
ARTICLE VI
RIGHTS AND OBLIGATIONS OF MEMBERS
Section 6.1 LIMITED LIABILITY OF PREFERRED SECURITY
HOLDERS. (a) Except as otherwise provided by the Act, no Preferred
Securities Holder will be liable for the debts, obligations and
liabilities of the Company, whether arising in contract, tort or
otherwise, which debts, obligations and liabilities shall be solely the
debts, obligations and liabilities of the Company.
(b) The Members shall not be required to lend any funds to
the Company.
(c) Each of the Members shall only be liable to make
payment of its respective Capital Contributions as and when due
hereunder and other payments as expressly provided in this Agreement.
If and to the extent a Member's Capital Contribution shall be fully
paid, such Member shall not, except as required by the express
provisions of the Act regarding repayment of sums wrongfully distributed
to Members, be required to make any further Capital Contributions.
Section 6.2 LIABILITY OF THE COMMON INTEREST HOLDERS. (a)
The Common Interest Holders, in their respective capacities as such,
hereby assume and shall be liable for the obligations and liabilities,
whether arising in contract, tort or otherwise of the Company (other
than obligations of the Company to make payments to the Holders of any
Preferred Securities in their capacities as Holders), including without
limitation:
(i) all expenses incurred by the Common Interest
Holders or its affiliates in organizing the Company;
(ii) all expenses related to the business of the
Company and all administrative expenses of the
Company, including the maintenance of books and
records of the Company, the preparation and dispatch
to the Members of distributions, financial reports,
tax returns and notices required pursuant to
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this Agreement or in connection with the holding of
any meetings of the Members;
(iii) all expenses incurred in connection with any
litigation or arbitration involving the Company
(including the cost of any investigation and
preparation) and the amount of any judgment or
settlement paid in connection therewith (other than
expenses incurred by the Common Interest Holders in
connection with any litigation or arbitration brought
by or on behalf of any Member against the Common
Interest Holders);
(iv) all expenses for indemnity or contribution
payable by the Company to any Person;
(v) all expenses incurred in connection with the
collection of amounts due to the Company from any
Person;
(vi) all expenses incurred in connection with the
preparation of amendments to this Agreement;
(vii) all taxes that may be imposed on the Company
(withholding or other similar taxes imposed on the
Company as a paying agent); and
(viii) all expenses incurred in connection with the
liquidation, dissolution and winding up of the
Company.
(b) It is intended that the foregoing impose the same
obligation on the Common Interest Holders as each would have as a
general partner of a limited partnership organized under the Delaware
Revised Uniform Limited Partnership Act.
(c) Any payment made by any Common Interest Holder under
its obligations under this Section 6.2 shall be considered an additional
Capital Contribution.
Section 6.3 OTHER BUSINESS; COMPENSATION, ETC. (a) In
accordance with Section 18-107 of the Act, the Members (including the
Common Interest Holders) may lend money to, borrow money from, act as
surety, guarantor or endorser for, guarantee or assume one or more
obligations of, provide collateral for, and transact other business
with, the Company and, subject to applicable law, shall have the same
rights and obligations with respect to any such matter as a Person who
is not a Member.
(b) The Members and any of their respective Affiliates may
engage in or possess an interest in other business ventures (unconnected
with the Company) of every kind and description, independently or with
others. None of the Company or other Members shall have any rights in
or to such independent ventures or the income or profits therefrom by
virtue of this Agreement.
Section 6.4 EXCULPATION AND INDEMNIFICATION. (a)
EXCULPATION. No Indemnified Person shall be liable to the Company or
any other Covered Person for any loss, damage or claim incurred by
reason of any act or omission performed or omitted by such Indemnified
Person in good faith on behalf of the Company and in a manner reasonably
believed to be within the scope of authority conferred on such
Indemnified Person by this Agreement, except that an Indemnified Person
shall be
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liable for any such loss, damage or claim incurred by reason of
such Indemnified Person's gross negligence or willful misconduct.
(b) RELIANCE ON REPORTS AND INFORMATION. An Indemnified
Person shall be fully protected in relying in good faith upon the
records of the Company and upon such information, opinions, reports or
statements presented to the Company by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with
reasonable care by or on behalf of the Company, including information,
opinions, reports or statements as to the value and amount of the
assets, liabilities, profits, losses, or any other facts pertinent to
the existence and amount of assets from which distributions to Members
might properly be paid.
(c) INDEMNIFICATION. To the fullest extent permitted by
applicable law, an Indemnified Person shall be entitled to
indemnification from the Company for any loss, damage or claim incurred
by such Indemnified Person by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the
Company and in a manner reasonably believed to be within the scope of
authority conferred on such Indemnified Person by this Agreement, except
that no Indemnified Person shall be entitled to be indemnified in
respect of any loss, damage or claim incurred by such Indemnified Person
by reason of gross negligence or willful misconduct with respect to such
acts or omissions; provided, however, that any indemnity under this
Section 6.4(c) shall be provided out of and to the extent of Company
assets only, and no Covered Person shall have any personal liability on
account thereof.
(d) EXPENSES. To the fullest extent permitted by
applicable law, expenses (including legal fees) incurred by an
Indemnified person in defending any claim, demand, action, suit or
proceeding shall, from time to time, be advanced by the Company prior to
the final disposition of such claim, demand, action, suit or proceeding
upon receipt by the Company of an undertaking by or on behalf of the
Indemnified Person to repay such amount if it shall be determined that
the Indemnified Person is not entitled to be indemnified as authorized
in Section 6.4(c) hereof.
(e) DUTIES. To the extent that, at law or in equity, an
Indemnified Person has duties (including fiduciary duties) and
liabilities to the Company or any other Covered Person, no such
Indemnified Person shall be liable to the Company or to any other
Covered Person for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they
restrict the duties and liabilities of any Indemnified Person otherwise
existing at law or in equity, are agreed by the Members to replace such
other duties and liabilities of such Indemnified Person.
(f) DISCRETION. Whenever in this Agreement an Indemnified
Person is permitted or required to make a decision (i) in its
"discretion" or under a grant of similar authority or latitude, the
Indemnified Person shall be entitled to consider only such interests and
factors as it desires, including its own interests, and shall have no
duty or obligation to give any consideration to any interest of or
factors affecting the Company or any other Person, or (ii) in its "good
faith" or under another express standard, the Indemnified Person shall
act under such express standard and shall not be subject to any other or
different standard imposed by this Agreement or other applicable law.
Section 6.5 MANAGEMENT AND CONTROL. Except as expressly
provided herein or in the Action or Actions establishing any series or
class of Preferred Securities, the Class B Interest Holder and Preferred
Security Holders will have no right to participate in the management and
control of the
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Company or have the right or power to vote on any
question or matter or in any proceeding or to be represented at, or
receive notice of, any meeting of Members. The Class B Interest Holder
and the Preferred Securities Holders shall not be agents of the Company
and shall not have any right, power or authority to transact any
business in the name of the Company or to act for or on behalf of or to
bind the Company. In accordance with Section 18-402 of the Act,
management and control of the Company shall be vested in the Class A
Interest Holder and all decisions with respect to the management and
control of the Company shall be made by the Class A Interest Holder.
There shall not be a "manager" (within the meaning of the Act) of the
Company. The Class A Interest Holder shall manage the Company in
accordance with this Agreement. In such capacity, the Class A Interest
Holder is an agent of the Company's business, and the actions of the
Class A Interest Holder taken in accordance with this Agreement shall
bind the Company.
Section 6.6 MEETINGS OF MEMBERS. (a) Meetings of the
Members of any class (or series thereof) or of all classes (or series
thereof) of the Company's Members may be called at any time by the Class
A Common Interest Holder or as provided in any Action or Actions
establishing a series of Preferred Securities. Except to the extent
otherwise provided in any such Action, the provisions of this Section
6.6 shall apply to meetings of Members.
(b) The Class A Interest Holder may fix a date not more
than 60 nor less than 10 days preceding the date of any meeting of
Members, or preceding the last day on which the consent of Members may
be effectively expressed for any purpose without a meeting, as a record
date for the determination of the Members entitled (i) to notice of, and
to vote at, such meeting and any adjournment thereof or (ii) to express
such consent, and, in either such case, such Members, and only such
Members as shall be Members of record on the date so fixed, shall be
entitled to notice of, and to vote at, such meeting and any adjournment
thereof, or to express such consent, as the case may be, notwithstanding
any transfer of any limited liability company interest in the Company on
the Register after any such record date fixed as aforesaid.
(c) Except as otherwise provided by law, the holders of a
majority of the limited liability company interests in the Company
entitled to vote at the meeting shall constitute a quorum at all
meetings of the Members. If a class or series of a class of limited
liability interests in the Company is entitled to vote as such a class
or series at a meeting of Members, holders of a majority of the limited
liability company interests of such class or series entitled to vote at
such meeting shall constitute a quorum at such meeting. In the absence
of a quorum, the holders of a majority of all such limited liability
company interests present in person or by proxy may adjourn any meeting,
from time to time, until a quorum shall be present. At any such
adjourned meeting at which a quorum shall be present, any business may
be transacted which might have been transacted at the meeting as
originally called.
(d) Except as otherwise provided by law or by this
Agreement, every Member who is entitled to vote shall at every meeting
of the Members be entitled to one vote for each limited liability
company interest in the Company held by such Member on the record date.
Except as otherwise provided by law, no vote on any question upon which
a vote of the Members may be taken need be by ballot unless the Class A
Interest Holder shall determine that it shall be by ballot or the
holders of a majority of the limited liability company interest present
in person or by proxy and entitled to participate in such vote shall so
demand. In a vote by ballot each ballot shall state the number of
limited liability company interests voted and the name of the Member or
proxy voting. Unless otherwise provided by law or by this Agreement
(including any Action), all questions shall be decided by the vote of
the holders of a majority of the limited liability company interests
present in person or
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by proxy at the meeting and entitled to vote on the
question. In determining the number of limited liability company
interests represented by the Common Interests, each Common Interest
Holder shall be treated as having a number of limited liability company
interests equal to such Common Interest Holder's aggregate total Capital
Contributions (excluding Capital Contributions made by such Person
pursuant to Section 6.2) divided by the sum of (x) the aggregate total
Capital Contributions of all the Common Interest Holders (excluding
Capital Contributions made by any Common Interest Holder pursuant to
Section 6.2) and (y) the aggregate total Capital Contributions of any
other series or class of limited liability company interest in the
Company then Outstanding.
(e) Each Member entitled to vote at a meeting of Members or
to express consent to Company action in writing without a meeting may
authorize another person or persons to act for him by proxy. A proxy
acting for any Member shall be duly appointed by an instrument in
writing subscribed by such Member.
(f) Any action required to or which may be taken at a
meeting of Members may be taken without a meeting, without prior notice
and without a vote, if a consent or consents in writing, setting forth
the action so taken, shall be signed by the Holders of outstanding
limited liability company interests in the Company having not less than
the minimum number of votes that would be necessary to authorize such
action at a meeting at which all limited liability company interests in
the Company entitled to vote thereon were present and voted and shall be
delivered to the Company by delivery to the Class A Interest Holder (who
shall have custody of the books in which proceedings of meetings of
Members are recorded).
(g) The Class A Interest Holder, in its sole discretion,
shall establish all other provisions relating to meetings of Members,
including notice of the time, place or purpose of any meeting at which
any matter is to be voted on by any Members, waiver of any such notice,
action by consent without a meeting, the establishment of a record date,
quorum requirements, voting in person or by proxy or any other matter
with respect to the exercise of any such right to vote, in accordance
with Section 18-302(c) of the Act.
ARTICLE VII
TRANSFERS OF INTERESTS, ETC.
Section 7.1 COMMON INTERESTS. Neither the Class A Interest
Holder nor the Class B Interest Holder may sell, transfer, alienate,
assign, encumber, pledge, grant or option, or otherwise dispose (any of
the foregoing a "Transfer") of any of its Class A Interest or Class B
Interest, as the case may be, in the Company.
Section 7.2 PREFERRED SECURITIES. The right to, and
restrictions on, any Transfer of any series of Preferred Securities
shall be established in the relevant Action or Actions establishing such
series.
Section 7.3 NONRECOGNITION OF CERTAIN TRANSFERS. Not-
withstanding any other provision of this Agreement, any transfer, sale,
alienation, assignment, encumbrance, lien, pledge, grant or any option,
interest or other rights in, or other disposition of, any limited
liability company
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interest in the Company in contravention of any of the
provisions of this Article shall be void and ineffective, and shall not
bind, or be recognized by, the Company.
ARTICLE VIII
BOOKS; ACCOUNTING; TAX ELECTIONS; REPORTS
Section 8.1 BOOKS AND RECORDS. The Class A Interest Holder
shall keep, or cause to be kept, complete and accurate books and records
of account of the Company. The books of the Company (other than books
required to maintain Capital Accounts) shall be kept on the accrual
basis of accounting, and otherwise in accordance with generally accepted
accounting principles consistently applied, and shall at all times be
maintained or made available at the principal business office of the
Company. A current list of the full name and last known business
address of each Member, set forth in alphabetical order (the
"REGISTER"), a copy of the Delaware Certificate, including all
certificates of amendment and/or restatement thereto and executed copies
of all powers of attorney pursuant to which the Delaware Certificate or
any certificate of amendment and/or restatement has been executed,
copies of the Company's federal, state and local income tax returns and
reports, if any, for the three most recent years, copies of the Agree-
ment and of any financial statements of the Company for the three most
recent years and all other records required to be maintained pursuant to
the Act, shall be maintained at the principal business office of the
Company. Such books and records of account of the Company shall be open
to inspection and examination at reasonable times by each Member and its
duly authorized representative for any purpose reasonably related to
such Member's interest in the Company. Notwithstanding any other
provision of this Agreement, the Class A Interest Holder may, to the
maximum extent permitted by applicable law, keep confidential from the
Members any information the disclosure of which the Class A Interest
Holder reasonably believes is not in the best interests of the Company
or is adverse to the interests of the Company or which the Company or
the Class A Interest Holder is required by law or by an agreement with
any other Person to keep confidential.
Section 8.2 FILINGS OF RETURNS AND OTHER WRITINGS; TAX
MATTERS PARTNER; TAX ELECTIONS. (a) The Class A Interest Holder shall
cause the preparation and timely filing of all Company tax returns and
shall, on behalf of the Company, timely file all other writings required
by any governmental authority having jurisdiction to require such
filing.
(b) After the end of each Fiscal Year, the Class A Interest
Holder shall cause to be prepared and transmitted, as promptly as
possible, and in any event within 90 days of the close of the Fiscal
Year, a federal income tax form K-1 (and any successor form thereto) and
such other tax information as may be required by law.
(c) Unless and until the Members shall otherwise agree, the
Class A Interest Holder shall serve as the "tax matters partner" (as
such term is defined in Section 6231(a)(7) of the Code, the "TAX MATTERS
PARTNER") for purposes of Section 6231 of the Code.
(d) Promptly following the written request of the Tax
Matters Partner, the Company shall, to the fullest extent permitted by
law, reimburse and indemnify the Tax Matters Partner for all reasonable
expenses, including reasonable legal and accounting fees, claims,
liabilities, losses and
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damages incurred by the Tax Matters Partner in
connection with any administrative or judicial proceeding with respect
to the tax liability of the Members.
(e) The provisions of this Section 8.2 shall survive the
termination of the Company or the termination of any Member's interest
in the Company and shall remain binding on the Members for as long a
period of time as is necessary to resolve with the Internal Revenue
Service any and all matters regarding the Federal income taxation of the
Company or the Members.
(f) The Class A Interest Holder may, in its discretion,
make the election provided for in Section 754 of the Code.
Section 8.3 CERTAIN INFORMATION RELATING TO NOMINEES. Any
Person who holds any Preferred Securities as nominee is required to
furnish to the Company:
(i) the name, address and taxpayer identification
number of the beneficial owner of such security;
(ii) notice of whether such beneficial owner is (A) not
a United States person for United States Federal income tax
purposes, (B) a foreign government, any international
organization, or any wholly-owned agency or instrumentality
of the foregoing, or (C) a tax-exempt entity;
(iii) the amount and description of the Preferred
Securities held, acquired, or transferred for the beneficial
owner; and
(iv) certain information, including the dates of
acquisitions and transfers, means of acquisitions and
transfers, and acquisition cost for purchases, as well as
the amount of net proceeds from sales.
ARTICLE IX
TERMINATION
Section 9.1 EVENTS OF DISSOLUTION. (a) In accordance with
Section 18-801 of the Act, the Company shall be dissolved and the
affairs of the Company wound up upon the occurrence of any of the
following events:
(i) a unanimous written decision of the Members to
dissolve the Company;
(ii) the Class A Interest Holder takes any action
requiring the Company to be wound up and dissolved;
(iii) the death, retirement, resignation, expulsion,
bankruptcy (as defined in Section 18-304 of the Act) or
dissolution of a Common Interest Holder or the occurrence of
any other event which terminates the continued membership of
a Common Interest Holder in the Company, unless, if there is
more than one Member remaining, the
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business of the Company is continued by the consent of all the
remaining Members within ninety days following the occurrence
of any such event;
(iv) the entry of a decree of judicial dissolution under
Section 18-802 of the Act;
(v) any transfer or redemption of the Class A Interest
or the Class B Interest; or
(vi) in any event, at 12:00 midnight on December 31,
2094.
(b) Dissolution of the Company shall be effective on the
day on which the event occurs giving rise to the dissolution, but the
Company shall not terminate until the assets of the Company shall have
been distributed as provided herein and a certificate of cancellation of
the Delaware Certificate has been filed with the Secretary of State of
the State of Delaware.
(c) The Company shall not be dissolved by the admission of
Members in accordance with the terms of this Agreement. Except as
provided in Section 9.1(a)(iii), the death, retirement, resignation,
expulsion, bankruptcy (as defined in Section 18-304 of the Act) or
dissolution of a Member or the occurrence of any event that terminates
the continued membership of a Member in the Company, shall not cause the
Company to be dissolved and its affairs wound up so long as the Company
at all times has at least two Members. Upon the occurrence of any such
event, the business of the Company shall be continued without
dissolution.
Section 9.2 PROCEEDS OF LIQUIDATION. Upon dissolution of
the Company, the Class A Interest Holder, as liquidating trustee, shall
immediately commence to wind up the Company's affairs; provided,
however, that a reasonable time shall be allowed for the orderly
liquidation of the assets of the Company and the satisfaction of
liabilities to creditors so as to enable the Members to minimize the
normal losses attendant upon a liquidation. Upon the liquidation of the
Company, all proceeds resulting therefrom (or from any other source
during the period of winding up of the Company) shall be applied (i)
first, to creditors of the Company, including Members who are creditors,
to the extent otherwise permitted by law, in satisfaction of the
liabilities of the Company (whether by payment or the making of
reasonable provision for payment thereof); and (ii) second, subject to
the terms of any Action or Actions establishing a series of Preferred
Securities, and subject to the applicable provisions of Section 3.4, to
the Members in proportion to and to the extent of the positive balances
of the Capital Accounts of the Members (after reflecting in such Capital
Accounts all adjustments thereto necessitated by (x) all other Company
transactions for the Fiscal Year of the Company in which such
liquidation occurs prior to or simultaneously with such liquidation and
(y) such liquidation).
Section 9.3 APPLICATION OF ASSETS. Subject to the terms of
any Action or Actions establishing a series of Preferred Securities, and
subject to the applicable provisions of Section 3.4, in the event of
dissolution, the Company shall conduct only such activities as are
necessary to wind up its affairs (including the sale of the assets of
the Company in an orderly manner), and the assets of the Company shall
be applied in the manner, and in the order of priority, set forth in
Section 9.2.
Section 9.4 GAINS OR LOSSES IN PROCESS OF LIQUIDATION.
Subject to the terms of any Action or Actions establishing a series of
Preferred Securities, and subject to the applicable provisions of
Section 3.4, any gain or loss on disposition of Company property in the
process of liquidation shall be credited or charged to the Capital
Accounts of each Member in accordance with the provisions of Article V.
Any property distributed in kind in the liquidation shall be valued and
treated as though the
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property were sold at its fair market value and
the cash proceeds were distributed. The difference between the fair
market value of property distributed in kind and its book value shall be
treated as a gain or loss on the sale of such property and shall be
credited or charged to the Capital Account of each Member in accordance
with Article V; provided, however, that no Member shall have the right
to request or require the distribution of the assets of the Company in
kind.
ARTICLE X
MISCELLANEOUS
Section 10.1 AMENDMENT TO THE AGREEMENT. Except as
otherwise provided in this Agreement or by any applicable terms of any
Action or Actions establishing a series of Preferred Securities, this
Agreement may be amended by, and only by, a written instrument executed
by the Class A Common Interest Holder; provided, however, that (a) no
amendment shall be made, and any such purported amendment shall be void
and ineffective, unless the Company shall have received an opinion of
independent counsel that, after giving effect to the amendment, the
Company will be treated as a partnership for United States federal
income tax purposes and (b) the terms of any Action or Actions
establishing a series of Preferred Securities may be amended as set
forth in such Action or Actions.
Section 10.2 NOTICES. (a) Any and all notices, consents,
offers, elections and other communications required or permitted under
this Agreement shall be deemed adequately given only if in writing and
the same shall be delivered either in hand or by mail or Federal Express
or similar expedited commercial carrier, addressed to the recipient of
the notice, postage prepaid and registered or certified with return
receipt requested (if by mail), or with all freight charges prepaid (if
by Federal Express or similar carrier).
(b) All notices, demands, and requests to be sent hereunder
shall be deemed to have been given for all purposes of this Agreement
upon the date of receipt or refusal.
(c) All such notices, demands and requests shall be
addressed as follows: (i) if to Protective, at P.O. Box 2606,
Birmingham, Alabama, 35202, Attention: Deborah J. Long, Esq., Senior
Vice President and General Counsel, Facsimile: (205) 868-3597,
Telephone: (205) 879-9230, if to Protective LLC Holding, Inc., at P.O.
Box 2606, Birmingham, Alabama, 35202, Attention: Deborah J. Long, Esq.,
Facsimile: (205) 868-3597, Telephone: (205) 879-9230 and (iii) if to the
Company, at P.O. Box 2606, Birmingham, Alabama, 35202, Deborah J. Long,
Esq., Facsimile: (205) 868-3597, Telephone: (205) 879-9230.
(d) By giving to the other parties written notice thereof,
the parties hereto and their respective successors and assigns shall
have the right from time to time and at any time during the term of this
Agreement to change their respective addresses effective upon receipt by
the other parties of such notice and each shall have the right to
specify as its address any other address within the United States of
America.
Section 10.3 WORD MEANINGS. The words such as "herein",
"hereinafter", "hereof" and "hereunder" refer to this Agreement as a
whole and not merely to a subdivision in which such
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words appear unless the context otherwise requires. The singular shall
include the plural and the masculine gender shall include the feminine and
neuter, and vice versa, unless the context otherwise requires.
Section 10.4 BINDING PROVISIONS. The covenants and
agreements contained herein shall be binding upon, and inure to the
benefit of, the heirs, legal representatives, successors and assigns of
the respective parties hereto.
Section 10.5 APPLICABLE LAW. THIS AGREEMENT SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS. IN THE
EVENT OF A CONFLICT BETWEEN ANY PROVISION OF THIS AGREEMENT AND ANY
NONMANDATORY PROVISION OF THE ACT, THE PROVISION OF THIS AGREEMENT SHALL
CONTROL AND TAKE PRECEDENCE.
Section 10.6 SEPARABILITY OF PROVISIONS. Each provision of
this Agreement shall be considered separable and if for any reason any
provision or provisions herein are determined to be invalid,
unenforceable or illegal under any existing or future law, such
invalidity, unenforceability or illegality shall not impair the
operation of or affect those portions of this Agreement which are valid,
enforceable and legal.
Section 10.7 TITLES. Section titles are for descriptive
purposes only and shall not control or alter the meaning of this
Agreement as set forth in the text.
Section 10.8 FURTHER ASSURANCES. The Members shall execute
and deliver such further instruments and do such further acts and things
as may be required to carry out the intent and purposes of this
Agreement.
Section 10.9 COUNTERPARTS. This Agreement may be executed
in any number of counterparts, each of which shall be deemed an original
of this Agreement.
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Section 10.10 ENTIRE AGREEMENT. This Agreement constitutes
the entire agreement between the parties hereto with respect to the
transactions contemplated herein, and supersedes all prior
understandings or agreements between the parties.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the day and year first-above written.
PROTECTIVE LIFE CORPORATION
/s/ John D. Johns
-------------------------
John D. Johns
Executive Vice President
PROTECTIVE LLC HOLDING, INC.
/s/ R. Stephen Briggs
-------------------------
R. Stephen Briggs
Executive Vice President
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ANNEX A
FORM OF ACTION
TERMS OF THE [ ]% EXCHANGEABLE CUMULATIVE
MONTHLY INCOME PREFERRED SECURITIES, SERIES [ ]
Protective Life Corporation, a Delaware corporation
("Protective" or the "Class A Interest Holder") and the Class A Interest
Holder of PLC Capital L.L.C., a limited liability company formed under
the laws of the State of Delaware (the "Company"), HEREBY CERTIFIES:
1. That pursuant to the terms of the Limited Liability
Company Agreement of the Company, dated March 24, 1994, among
Protective, Protective LLC Holding, Inc., a Delaware corporation, and
the other Persons who become Members of the Company from time to time as
therein provided (the "Agreement"), the Company authorized the creation
of preferred limited liability interests in the Company (the "Preferred
Securities"); and
2. That by this duly adopted Action of the Class A
Interest Holder, on behalf of the Company dated ____________, the Class
A Interest Holder, pursuant to authority granted to it in the Agreement,
authorized the sale and issuance of ________ Series [ ] Preferred
Securities having such designations, stated value, rights, privileges,
restrictions, preferences and other terms and provisions as the Class A
Interest Holder authorized or approved as set forth below:
DECLARED, that pursuant to the Agreement, the Class A
Interest Holder hereby authorizes the issuance of a series of Preferred
Securities, liquidation preference [$ ] per Preferred Security, of the
Company and hereby fixes the number, voting powers, designation,
preferences, participating, optional or other special rights and the
qualifications, limitations or restrictions of, and other matters
relating to, said series as follows (capitalized terms used herein
without definition have the meanings ascribed to such terms in the
Agreement):
1. DESIGNATION. [ ]% Exchangeable Cumulative Guaranteed
Monthly Income Preferred Securities, Series [ ], ______ securities of
the Preferred Securities of the Company, liquidation preference [$ ]
per Preferred Security, are hereby constituted as a series of preferred
limited liability company interests, designated as "[ ]% Exchangeable
Cumulative Guaranteed Monthly Income Preferred Securities, Series [ ]"
(hereinafter called the "Series [ ] Preferred Securities").
2. RANKING. The Series [ ] Preferred Securities shall,
with respect to periodic distribution rights and rights on liquidation,
dissolution or winding up, rank (i) pari passu with any other series of
Preferred Securities issued by the Company and (ii) prior to any other
limited liability company interests of the Company, including the Common
Interests (the "Junior Interests"). So long as any Series [ ] Preferred
Securities are outstanding, the Company will not issue any limited
liability company interests ranking, as to participation in the profits
or assets of the Company, senior to the Series [ ] Preferred Securities.
The issuance of any limited liability company interests ranking senior
to the Series [ ] Preferred Securities shall constitute a variation or
abrogation of the rights attached to the Series [ ] Preferred Securities
under the Agreement.
<PAGE>
3. PERIODIC DISTRIBUTIONS (DIVIDENDS). (a) The holders
of the Series [ ] Preferred Securities shall be entitled to receive,
when, as and if declared by the Company out of funds held by the Company
and legally available therefor, cumulative cash periodic distributions
("dividends") at the annual rate of [ ]% of the stated liquidation
preference of [$ ] per Series [ ] Preferred Security per annum, and no
more, calculated on the basis of a 360-day year consisting of 12 months
of 30 days each, and for any period shorter than a full monthly dividend
period, dividends will be computed on the basis of the actual number of
days elapsed in such period, and payable in United States dollars
monthly in arrears on the last day of each calendar month of each year,
commencing ________. Such dividends will accrue and be cumulative
whether or not they have been declared and whether or not there are
profits, surplus or other funds of the Company legally available for the
payment of dividends. Dividends on the Series [ ] Preferred Securities
shall be cumulative from the date of original issue, and the cumulative
portion from such date to _________ shall be payable on ____________.
In the event that any date on which dividends are payable on the Series
[ ] Preferred Securities is not a day on which banks in The City of New
York are open for business (a "Business Day"), then payment of the
dividend payable on such date will be made on the next succeeding day
which is a Business Day (and without any interest or other payment in
respect of any such delay) except that, if such Business Day is in the
next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and
effect as if made on such date.
(b) Dividends on the Series [ ] Preferred Securities must
be declared by the Class A Interest Holder of the Company in any
calendar year or portion thereof to the extent that the Class A Interest
Holder reasonably anticipates that at the time of payment the Company
will have, and will be paid by the Company to the extent that at the
time of proposed payment it has, (x) funds legally available for the
payment of such dividends and (y) cash on hand sufficient to permit such
payments. Dividends declared on the Series [ ] Preferred Securities
will be payable to the record holders thereof as they appear on the
Register on the relevant record dates, which will be [one] Business Day
prior to the relevant payment dates. If dividends can be paid only in
part on the Series [ ] Preferred Securities in any calendar year or
portion thereof as a result of the lack of sufficient funds legally
available for the payment of dividends, then such partial dividends
shall be paid on the respective dividend payment dates on a pro rata
basis to holders of such Series [ ] Preferred Securities. If at any
time dividends on Series A Securities are in arrears for any monthly
dividend period, any dividend payments in respect thereof must be
applied in respect of all dividend periods in arrears, pro rata in
accordance with the respective amounts in arrears for each such period
in equal amounts for each such period. If any dividends are not paid in
full on the payment dates specified, additional dividends will accrue on
any accrued and unpaid dividends at the rate stated in paragraph 3(a)
above.
(c) If dividends have not been paid in full on the Series
[ ] Preferred Securities, the Company shall not:
(i) pay, or declare and set aside for payment, any
dividends on any other preferred or preference limited
liability company interests of the Company ranking pari
passu with the Series [ ] Preferred Securities as regards
participation in profits of the Company ("Dividend Parity
Securities"), unless the amount of any dividends declared on
any Dividend Parity Securities is paid on the Dividend
Parity Securities and the Series [ ] Preferred Securities on
a pro rata basis on the date such dividends are paid on such
Dividend Parity Securities, so that
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(x) (A) the aggregate amount of dividends paid on
the Series [ ] Preferred Securities bears to
(B) the aggregate amount of dividends paid on
such Dividend Parity Securities
the same ratio as
(y) (A) the aggregate of all accumulated and unpaid
dividends in respect of the Series [ ] Preferred
Securities bears to (B) the aggregate of all
accumulated and unpaid dividends in respect of
such Dividend Parity Securities;
(ii) pay, or declare and set aside for payment, any
dividends on any Common Interests or limited liability
company interests in the Company ranking junior to the
Series [ ] Preferred Securities as to dividends ("Dividend
Junior Securities"); or
(iii) redeem, purchase or otherwise acquire any Dividend
Parity Securities or Dividend Junior Securities or any
Series [ ] Preferred Securities other than the redemption of
all outstanding Series [ ] Preferred Securities at the
redemption price of [$ ] per Series [ ] Preferred Security
plus accumulated and unpaid dividends (whether or not
declared) to the date fixed for redemption (the "Redemption
Price");
until, in each case, such time as all accumulated and unpaid dividends
(whether or not declared) on the Series [ ] Preferred Securities shall
have been paid in full for all dividend periods terminating on or prior
to, in the case of clauses (i) and (ii), such payment, and in the case
of clause (iii), the date of such redemption, purchase or acquisition.
(d) The Company shall be treated as a partnership for
United States federal income tax purposes and the Agreement and all
resolutions of the members thereof shall, to the fullest extent
permitted by the Delaware Limited Liability Company Act, Del. Code Ann.
tit. 6 18-101 et seq. (the "Act"), be interpreted and construed
accordingly. Consistent with such treatment, income of the Company
equal to the amount of dividends accrued on the Series [ ] Preferred
Securities will be allocated to the holders of the Series [ ] Preferred
Securities; income in excess of such amount will be allocated to the
holders of the Junior Interests.
4. REDEMPTION. (a) The Series [ ] Preferred Securities
are redeemable, at the option of the Company and subject to the prior
consent of Protective, in whole or in part from time to time, on or
after _________, upon not less than 30 nor more than 60 days' notice, at
the Redemption Price. If a partial redemption would result in a de-
listing of the Securities from the New York Stock Exchange, the Company
may only redeem the Series [ ] Preferred Securities in whole.
(b) Upon any repayment or prepayment of principal on the
loans to Protective of the proceeds from the issuance and sale of the
Series [ ] Preferred Securities and the Junior Interests (the "Series
[ ] Debentures"), the proceeds from such repayment of principal on the
Series [ ] Debentures shall be applied to redeem the Series [ ]
Preferred Securities at the Redemption Price; provided that any such
amounts may be reloaned to Protective or one of its subsidiaries, and
not used for redemption, if at the time of each such loan, and as
determined in the judgment of Protective, as Class A Interest Holder,
and the Company's financial advisor (selected by the Class A Interest
Holder, and who shall be unaffiliated with Protective and shall be among
the 30 largest investment banking
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firms, measured by total capital, in the United States at the time of the
proposed new loan), (i) Protective is not in bankruptcy, (ii) Protective is
not in default on any loan pertaining to Preferred Securities, (iii)
Protective has made all required monthly payments of interest on all loans
pertaining to any series of Preferred Securities for the immediately preceding
[18] months, (iv) the Company is not in arrears on payments of dividends on
any Preferred Securities, (v) Protective is expected to be able to make
timely payment of principal and interest on such new loan, (vi) such new
loan is being made on terms, and under circumstances, that are no less
favorable than those that a lender would require for a similar loan to
an unrelated party, (vii) such new loan is being made at a rate of
interest sufficient to provide payments of interest equal to or greater
than the amount of dividends that accrue on the Series [ ] Preferred
Securities, (viii) such loan is being made for a fixed term that is
consistent with market circumstances and Protective's financial
condition, (ix) the senior unsecured long-term debt rating of Protective
is rated not less than BBB- (or the equivalent) by Standard & Poor's
Corporation or Baa3 (or the equivalent) by Moody's Investors Services,
Inc. (or if either of such rating organizations is not then rating
Protective's senior unsecured senior unsecured long-term debt, the
equivalent of such rating by any other "nationally recognized
statistical rating organization," as that term is defined by the
Securities and Exchange Commission for purposes of Rule 436(g)(2) under
the Securities Act and any subordinated long-term debt of Protective or,
if there is no such debt then outstanding, the Series [ ] Preferred
Securities, are rated not less than BBB- (or the equivalent) by Standard
& Poor's Corporation or Baa3 (or the equivalent) by Moody's Investors
Services, Inc. or the equivalent of either such rating by any other
"nationally recognized statistical rating organization", (x) such new
loan will not be convertible or exchangeable into any equity interest of
or in the borrower or any of its affiliates, (xi) such new loan shall
not pay any contingent or other interest determined by reference to, or
otherwise participate in, the earnings or profits of the borrower; (xii)
the interest payable on such new loan will not exceed [175%] of the
dividend rate on the Series [ ] Preferred Securities and (xiii) the
final maturity of such loan is not later than the [50th] anniversary of
the issuance of the Series [ ] Preferred Securities.
(c) Notwithstanding subparagraph (a) above, at any time
after the issuance of the Series [ ] Preferred Securities, upon not less
than 30 nor more than 60 days' notice, the Company may redeem the Series
[ ] Preferred Securities in exchange for subordinated debentures issued
by Protective pursuant to the Subordinated Debenture dated __________
between Protective and ______ as trustee ("Series [ ] Debentures")
having an aggregate principal amount and accrued an unpaid interest at
the time of the exchange equal to the Redemption Price and interest rate
thereon equal to the dividend rate on the Series [ ] Preferred
Securities if Protective and the Company have received an opinion of
independent nationally recognized legal counsel that, as a result of any
change after the day before the date of the issuance of the Series [ ]
Preferred Securities in U.S. law (including the enactment or imminent
enactment of any legislation, the publication of any judicial decisions
or regulatory filings or a change in the official position or in the
interpretation or application of law or regulations), there exists more
than an insubstantial risk that (i) Protective will be precluded from
deducting the interest on such loan for federal income tax purposes or
(ii) the Company is subject to federal income tax with respect to the
interest received on such loan or more than a de minimis amount of any
other taxes. Furthermore, Protective shall have the right, upon not
less than 30 nor more than 60 days' notice to redeem the Series [ ]
Preferred Securities at the Redemption Price if Protective and the
Company have received an opinion of independent nationally recognized
counsel that, as a result of a change in law described above, there
exists more than an insubstantial risk that Protective will be precluded
from deducting the interest on such loan for federal income tax purposes
even if the series of Preferred Securities were exchanged for the loans
as described above.
4
<PAGE>
(d) Notwithstanding anything to the contrary contained
herein, on or after the date of issuance of the Series [ ] Preferred
Securities, the Company may, at its option, subject to the prior written
consent of Protective, redeem the Series [ ] Preferred Securities in
whole (but not in part), not less than 30 nor more than 60 days' notice,
at the Redemption Price in the event there shall occur a change in law
or regulation, or a written change in interpretation of law or
regulation, by any legislative body, court, governmental agency or
regulatory authority to the effect that (i) the Company is considered an
"investment company" under the Investment Company Act of 1940, as
amended (the "1940 Act"), or (ii) direct or indirect ownership of the
Junior Interests would cause Protective to be considered an "investment
company" under the 1940 Act.
5. REDEMPTION PROCEDURE. (a) Notice of any redemption (a
"Notice of Redemption") of the Series [ ] Preferred Securities will be
given by the Company by mail to each record holder of Series [ ]
Preferred Securities to be redeemed not fewer than 30 nor more than 60
days prior to the date fixed for redemption thereof. For purposes of
the calculation of the date of redemption and the dates on which notices
are given pursuant to this paragraph 5(a), a Notice of Redemption shall
be deemed to be given on the day such notice is first mailed by first
class mail, postage prepaid, to holders of record of the Series [ ]
Preferred Securities. Each Notice of Redemption shall be addressed to
the holder of record at the address of the holder appearing in the
securityholder register of the Company. No defect in the Notice of
Redemption or in the mailing thereof or publication of its contents
shall affect the validity of the redemption proceedings.
(b) In the event that fewer than all the outstanding
Series [ ] Preferred Securities are to be redeemed, the Series [ ]
Preferred Securities to be redeemed will be selected in accordance with
paragraph 8 hereof. The Company may not redeem fewer than all the
outstanding Series [ ] Preferred Securities unless all accumulated and
unpaid dividends have been paid on all Series [ ] Preferred Securities
for all monthly dividend periods terminating on or prior to the date of
redemption.
(c) (1) EXCHANGE FOR SERIES [ ] DEBENTURES. In the event
of an exchange pursuant to paragraph 4(c), after the date fixed for any
such exchange, (i) the Series [ ] Preferred Securities will no longer be
deemed to be outstanding, (ii) DTC or its nominee, as the record holder
of the Series [ ] Preferred Securities, will exchange the global
certificate or certificates representing the Series A Preferred
Securities for a registered global certificate or certificates
representing the Series [ ] Debentures to be delivered upon such
exchange and (iii) any certificates representing Series [ ] Preferred
Securities not held by DTC or its nominee will be deemed to represent
Series [ ] Debentures having a principal amount equal to the stated
liquidated preference of such Series [ ] Preferred Securities until such
certificates are presented to PLC Capital or its agent for exchange.
(2) REDEMPTION FOR THE REDEMPTION PRICE. If the Company
gives a Notice of Redemption at the Redemption Price in respect of
Series [ ] Preferred Securities, then, by 12:00 noon, New York time, on
the redemption date, the Company will irrevocably deposit with The
Depository Trust Company funds sufficient to pay the applicable
Redemption Price and will give The Depository Trust Company irrevocable
instructions and authority to pay the Redemption Price to the holders
thereof. If Notice of Redemption shall have been given and funds
deposited as required, then upon the date of such deposit, all rights of
holders of such Series [ ] Preferred Securities so called for redemption
will cease, except the right of the holders of such Series [ ] Preferred
Securities to receive the Redemption Price, but without interest, and
such Series [ ] Preferred Securities will cease to be outstanding. In
the event that any date fixed for redemption of Series [ ] Preferred
Securities is not a Business Day, then payment of the Redemption Price
payable on such date will be made on the next
5
<PAGE>
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day falls
in the next calendar year, such payment will be made on the immediately
preceding Business Day. In the event that payment of the Redemption Price in
respect of Series [ ] Preferred Securities is improperly withheld or
refused and not paid either by the Company or by Protective pursuant to
the Payment and Guarantee Agreement, dated ________, between Protective
and the Company (the "Guarantee Agreement"), dividends on such Series
[ ] Preferred Securities will continue to accrue at the then applicable
rate, from the original redemption date to the date of payment in which
case the actual payment date will be considered the date fixed for
redemption for purposes of calculating the Redemption Price.
6. LIQUIDATION DISTRIBUTION. In the event of any
voluntary or involuntary liquidation, dissolution or winding up of the
Company, the holders of the Series [ ] Preferred Securities at the time
outstanding will be entitled to receive out of the assets of the Company
available for distribution to members, before any distribution of assets
is made to holders of Junior Interests or any other class of limited
liability company interests of the Company ranking junior to Series [ ]
Preferred Securities as regards participation in assets of the Company,
but together with the holders of every other series of preferred or
preference limited liability company interests of the Company
outstanding, if any, ranking pari passu with the Series [ ] Preferred
Securities as regards participation in the assets of the Company
("Liquidation Parity Securities"), an amount equal, in the case of the
holders of the Series [ ] Preferred Securities, to the aggregate of the
stated liquidation preference of [$ ] per Series [ ] Preferred Security
and all accumulated and unpaid dividends (whether or not declared) to
the date of payment (the "Liquidation Distribution"). If, upon any such
liquidation, the Liquidation Distributions can be paid only in part
because the Company has insufficient assets available to pay in full the
aggregate Liquidation Distribution and the aggregate maximum Liquidation
Distributions on the Liquidation Parity Securities, then the amounts
payable directly by the Company on the Series [ ] Preferred Securities
and on such Liquidation Parity Securities shall be paid on a pro rata
basis, so that
(i) (x) the aggregate amount paid as the Liquidation
Distribution bears to (y) the aggregate amount
paid as liquidation distributions on the
Liquidation Parity Securities
the same ratio as
(ii) (x) the aggregate Liquidation Distribution bears
to (y) the aggregate maximum liquidation
distributions on the Liquidation Parity
Securities.
7. VOTING RIGHTS. The Series [ ] Preferred Securities
shall not have general voting rights but shall have the rights set forth
in this paragraph 7. If (i) the Company fails to pay dividends in full
on the Securities for [18] consecutive monthly dividend periods (whether
or not there are legally available funds) for any period and as a result
dividends on the Series [ ] Preferred Securities shall be in arrears in
an aggregate amount equal to at least [ ] full monthly dividend
payments; (ii) an Event of Default (as defined in the Series [ ]
Debentures) under the Series [ ] Debentures and is continuing; or (iii)
Protective is in default on any of its payment or other obligations
under the Guarantee Agreement (as defined herein), then the holders of a
majority in liquidation preference of the outstanding Series [ ]
Preferred Securities, together with the holders of any other preferred
or preference limited liability company interests in the Company having
the right to vote for the appointment of a trustee in such event, acting
as a single class, will be entitled, by ordinary resolution passed by
the holders of a majority in liquidation preference (plus all
accumulated and unpaid
6
<PAGE>
dividends per limited liability company interest) of such limited liability
company interests present in person or by proxy at a separate general meeting
of such holders convened for such purpose, to appoint and authorize a trustee
to enforce the Company's rights as a creditor under the Series [ ] Debentures
against Protective (including the acceleration of principal and accrued
interest on the Series [ ] Debentures), enforce the obligations undertaken by
Protective under the Guarantee Agreement and declare and pay dividends on the
Series [ ] Preferred Securities. For purposes of determining whether
the Company has failed to pay dividends in full for [18] consecutive
monthly dividend periods, dividends shall be deemed to remain in
arrears, notwithstanding any payments in respect thereof, until full
cumulative dividends have been or contemporaneously are declared and
paid with respect to all monthly dividend periods terminating on or
prior to the date of payment of such full cumulative dividends. Not
later than 30 days after such right to appoint a trustee arises, the
Class A Interest Holder will convene such meeting for the above purpose.
If the Class A Interest Holder fails to convene a general meeting within
such 30-day period, the holders of 10% in liquidation preference (plus
all accumulated and unpaid dividends per limited liability company
interest) of the outstanding Series [ ] Preferred Securities and such
other preferred or preference limited liability company interests will
be entitled to convene such meeting. The provisions of the Agreement
relating to the convening and conduct of the general meetings of Members
will apply with respect to any such meeting. Any trustee so appointed
shall vacate office, subject to the terms of such other preferred or
preference limited liability company interests, immediately if the
Company (or Protective pursuant to the Guarantee Agreement) shall have
paid in full all accumulated and unpaid dividends on the Securities or
such default or breach by Protective, as the case may be, shall have
been cured.
If any resolution is proposed for adoption by the Members of
the Company providing for, or the Class A Interest Holder otherwise
proposes to effect (it being understood, that the events described in
paragraphs 6(iii) and (iv) hereof shall not be deemed to be a proposal
by the Class A Interest Holder), (x) any variation or abrogation of the
rights, preferences and privileges of the Series [ ] Preferred
Securities, whether by way of amendment of the Agreement (as amended by
this Action) or otherwise (including, without limitation, the
authorization or issuance of any limited liability company interests of
the Company ranking, as to participation in the profits or assets of the
Company, senior to the Series [ ] Preferred Securities), (y) the
liquidation, dissolution or winding up of the Company or (z) the
modification of (i) Sections 7.1 of the Agreement which absolutely
prohibits transfers of Common Interests, (ii) Section 3.3 of the
Agreement which requires the holders of the Common Interests to
contribute amounts to the Company such that the Common Interests
represent at all times not less than 21% of all interests in the
capital, income, gain, loss, deduction or credit of the Company and
(iii) Section 6.2 of the Agreement pursuant to which the Common Interest
Holders agree to be personally liable for all debts of and claims
against the Company (other than payments to holders of Preferred
Securities in their capacity as such), then the holders of outstanding
Preferred Securities of all series (and, in the case of a resolution
described in clause (x) above which would equally adversely affect the
rights, preferences or privileges of any Dividend Parity Securities or
any Liquidation Parity Securities, such Dividend Parity Securities or
such Liquidation Parity Securities, as the case may be, or, in the case
of any resolution described in clause (y) or (z) above, all Liquidation
Parity Securities) will be entitled to vote together as a class on such
resolution or action of the Class A Interest Holder (but not on any
other resolution or action), and such resolution or action shall not be
effective except with the approval of the holders of 66-2/3% in
liquidation preference (plus all accumulated and unpaid dividends) of
such outstanding limited liability company interests; provided, however,
that no such approval or ratification shall be required if the
liquidation, dissolution and winding up of the Company is proposed or
initiated upon the initiation of proceedings, or after proceedings have
been initiated, for the liquidation, dissolution, or winding up of
Protective.
7
<PAGE>
No vote or consent of the holders of the Series [ ]
Preferred Securities will be required for the Company to redeem and
cancel Series [ ] Preferred Securities in accordance with the Agreement
(as amended by this Action).
The rights attached to the Series [ ] Preferred Securities
will be deemed not to be varied by the creation or issue of, and no vote
will be required for the creation of, any further series of Preferred
Securities or any further limited liability company interests of the
Company ranking pari passu with or junior to the Series [ ] Preferred
Securities with regard to participation in the profits or assets of the
Company. Holders of Series [ ] Preferred Securities have no preemptive
rights.
Any required approval of holders of Series [ ] Preferred
Securities may be given at a separate meeting of such holders convened
for such purpose, at a general meeting of Members of the Company or
pursuant to written consent. The Company will cause a notice of any
meeting at which holders of the Series [ ] Preferred Securities are
entitled to vote, or of any matter upon which action by written consent
of such holders is to be taken, to be mailed to each holder of record of
Series [ ] Preferred Securities. Each such notice will include a
statement setting forth (i) the date of such meeting or the date by
which such action is to be taken, (ii) a description of any resolution
proposed for adoption at such meeting on which such holders are entitled
to vote or of such matter upon which written consent is sought and
(iii) instructions for the delivery of proxies or written consents.
Notwithstanding that holders of Series [ ] Preferred
Securities are entitled to vote or consent under any of the circum-
stances described above, any of the Series [ ] Preferred Securities and
any such other preference limited liability company interests entitled
to vote with such Series [ ] Preferred Securities as a single class
outstanding at such time that are owned by Protective or any entity
owned more than 20% by Protective, either directly or indirectly, shall
not be entitled to vote or consent and shall, for the purposes of such
vote or consent, be treated as if they were not outstanding.
8. BOOK-ENTRY-ONLY ISSUANCE; THE DEPOSITORY TRUST
COMPANY. The Depository Trust Company ("DTC"), New York, New York, will
act as securities depository for the Series [ ] Preferred Securities.
The Series [ ] Preferred Securities will be issued only in the form of
one or more fully-registered global securities representing in the
aggregate the total number of Series [ ] Preferred Securities and
registered in the name of Cede & Co. (DTC's nominee).
Redemption notices shall be sent to Cede & Co. If less than
all of the Series [ ] Preferred Securities are being redeemed, Series
[ ] Preferred Securities to be redeemed shall be determined in accordance
with DTC's practice.
DTC may discontinue providing its services as securities
depository with respect to the Series [ ] Preferred Securities at any
time by giving notice to the Company as provided in the agreement
between the Company and DTC. Under such circumstances, in the event
that a successor securities depository is not obtained, Series [ ]
Preferred Security certificates are required to be printed and issued in
definitive form. Any person receiving a definitive certificate
representing Series [ ] Preferred Securities pursuant to this paragraph
8 shall be deemed to have paid for such Series [ ] Securities for
purposes of Section 3.1(b) of the Agreement, and shall thereupon be
admitted to the Company as a Member in accordance with Section 3.1(b) of
the Agreement.
8
<PAGE>
IN WITNESS WHEREOF, the Class A Interest Holder has executed
this Action as of the ____ day of _________, 1994.
By: PROTECTIVE LIFE CORPORATION,
as Class A Interest Holder
By:______________________
Name:
Title:
Attest:_______________________
Name:
Title:
9
<PAGE>
EXHIBIT 12(A)
PROTECTIVE LIFE CORPORATION
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
DECEMBER 31
<TABLE>
<CAPTION>
1993 1992 1991 1990 1989
--------- --------- --------- --------- ---------
(IN THOUSANDS, EXCEPT FOR RATIOS)
<S> <C> <C> <C> <C> <C>
Earnings, as defined:
Income from continuing operations before income tax
expense and minority interests...................... $ 85,044 $ 59,947 $ 51,703 $ 40,282 $ 32,286
Add:
Interest expense................................... 6,300 4,800 5,700 5,400 1,300
Minority interests................................. (19) (90) (1,721) (1,326)
--------- --------- --------- --------- ---------
Total earnings, as defined............................. $ 91,325 $ 64,657 $ 55,682 $ 44,356 $ 33,586
--------- --------- --------- --------- ---------
--------- --------- --------- --------- ---------
Fixed charges, as defined:
Interest expense..................................... $ 6,300 $ 4,800 $ 5,700 $ 5,400 $ 1,300
--------- --------- --------- --------- ---------
Total fixed charges, as defined........................ $ 6,300 $ 4,800 $ 5,700 $ 5,400 $ 1,300
--------- --------- --------- --------- ---------
--------- --------- --------- --------- ---------
Ratio of earnings to fixed charges..................... 14.5 13.5 9.8 8.2 25.8
--------- --------- --------- --------- ---------
--------- --------- --------- --------- ---------
</TABLE>
<PAGE>
Exhibit 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on
Form S-3 of Protective Life Corporation and PLC Capital L.L.C. for the
registration of debt securities and preferred stock of Protective Life
Corporation and preferred securities of PLC Capital L.L.C. of our report,
which includes an explanatory paragraph with respect to changes in Protective
Life Corporation's methods of accounting for certain investments in debt and
equity securities in 1993 and postretirement benefits other than pensions in
1992, dated February 14, 1994, on our audits of the consolidated financial
statements and financial statement schedules of Protective Life Corporation as
of December 31, 1993 and 1992 and for the years ended December 31, 1993, 1992,
and 1991. We also consent to the reference to our firm under the caption
"Experts."
COOPERS & LYBRAND
Birmingham, Alabama
March 25, 1994
<PAGE>
Exhibit 23(b)
CONSENT OF KPMG PEAT MARWICK
The Board of Directors
Protective Life Corporation:
We consent to the incorporation by reference in this Registration Statement on
Form S-3 of Protective Life Corporation and PLC Capital L.L.C. of our report
to the Board of Directors of Wisconsin National Life Insurance Company, dated
February 26, 1993 (including Note 11 thereto, which is dated as of May 4,
1993), relating to the balance sheets of Wisconsin National Life Insurance
Company as of December 31, 1992 and 1991 and the related statements of income,
stockholder's equity and cash flows for the years then ended, which report
appears in the Protective Life Corporation's Current Report on Form 8-K, dated
August 4, 1993, filed with the Securities and Exchange Commission. We also
consent to the reference to our firm under the caption "Experts" in the
Registration Statement.
KPMG PEAT MARWICK
Milwaukee, Wisconsin
March 24, 1994
<PAGE>
Exhibit 24(c)
PROTECTIVE LIFE CORPORATION
2801 Highway 280 South
Birmingham, Alabama 35223
KNOW ALL MEN BY THESE PRESENTS that the undersigned Officers and
Directors of Protective Life Corporation, a Delaware corporation (the
"Corporation"), hereby constitute and appoint Drayton Nabers, Jr., John D. Johns
and Deborah J. Long, and each of them, the true and lawful agents and attorneys-
in-fact of the undersigned with full power and authority in said agents and
attorneys-in-fact, and any one or more of them, to sign for the undersigned and
in their respective names as Officers and as Directors of the Corporation (both
in such capacity and in capacities necessary for the execution of documents in
their names on behalf of the Corporation in its capacity as a member or
managing member of any such limited liability company as the Corporation may
form under the laws of the State of Delaware (any such subsidiary, "PLC
Capital LLC") one or more Registration Statements on Form S-3 of the
Corporation and PLC Capital LLC to be filed with the Securities and Exchange
Commission, Washington, D.C., under the Securities Act of 1933, as amended,
and any amendment or amendments to such Registration Statements, relating to
the debt securities and preferred stock of the Corporation, the preferred
limited liability company interests of PLC Capital LLC and related backup
undertakings of the Corporation to be offered to the public, and the
undersigned hereby ratify and confirm all acts taken by such agents and
attorneys-in-fact, or any one or more of them, as herein authorized.
Dated: March 24, 1994
Name Title
/s/ Drayton Nabers, Jr. President and Chief
- -------------------------- Executive Officer and
Drayton Nabers, Jr. Director
/s/ John D. Johns Executive Vice President
- ------------------------- and Chief Financial
John D. Johns Officer
/s/ Jerry W. DeFoor Vice President and
- ------------------------- Controller, and Chief
Jerry W. DeFoor Accounting Officer
<PAGE>
/s/ William J. Rushton III Chairman of the Board
- -------------------------- and Director
William J. Rushton III
/s/ John W. Woods Director
- --------------------------
John W. Woods
/s/ Crawford T. Johnson III Director
- ---------------------------
Crawford T. Johnson III
/s/ William J. Cabaniss, Jr. Director
- ----------------------------
William J. Cabaniss, Jr.
/s/ H.G. Pattillo Director
- -----------------------------
H.G. Pattillo
/s/ Edward L. Addison Director
- -----------------------------
Edward L. Addison
/s/ John J. McMahon, Jr. Director
- -----------------------------
John J. McMahon, Jr.
/s/ A. W. Dahlberg Director
- -----------------------------
A.W. Dahlberg
/s/ John W. Rouse, Jr. Director
- -----------------------------
John W. Rouse, Jr.
/s/ Robert T. David Director
- -----------------------------
Robert T. David
Director
- -----------------------------
Ronald L. Kuehn, Jr.
/s/ Herbert A. Sklenar Director
- -----------------------------
Herbert A. Sklenar
<PAGE>
CONFORMED COPY
===============================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
______________________
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
______________________
PROTECTIVE LIFE CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 95-2492236
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
c/o Deborah J. Long, Esq.
Senior Vice President and General Counsel
Protective Life Corporation
P.O. Box 2606
Birmingham, Alabama 35202
(Address of principal executive offices) (Zip code)
______________________
Senior Debt Securities
(Title of the indenture securities)
===============================================================================
<PAGE>
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which it
is subject.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y.
12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20549
New York Clearing House Association New York, New York
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such affilia-
tion.
None. (See Note on page 3.)
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule
7a-29 under the Trust Indenture Act of 1939 (the "Act") and Rule 24 of the
Commission's Rules of Practice.
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
-2-
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the Trustee
of all facts on which to base a responsive answer to Item 2, the answer to said
Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an amendment
to this Form T-1.
- 3 -
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 24th day of March, 1994.
THE BANK OF NEW YORK
By: /s/ Mary Jane Morrissey
----------------------------
Name: Mary Jane Morrissey
Title: Assistant Vice President
-4-
<PAGE>
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business
December 31, 1993, published in accordance with a call made by the
Federal Reserve Bank of this District pursuant to the provisions
of the Federal Reserve Act.
<TABLE>
Dollar Amounts
in Thousands
<S> <C>
ASSETS
Cash and balances due from depository
institutions:
Noninterest-bearing balances and
currency and coin .................. $ 4,393,393
Interest-bearing balances .......... 652,315
Securities ........................... 3,809,834
Federal funds sold in domestic offices
of the bank ........................ 331,075
Loans and lease financing receivables:
Loans and leases, net of unearned
income .................23,708,678
LESS: Allowance for loan and lease
losses .....................773,597
LESS: allocated transfer risk
reserve .....................28,427
Loans and leases, net of unearned
income, allowance and reserve .... 22,906,654
Assets held in trading accounts ...... 851,615
Premises and fixed assets (including
capitalized leases) ................ 657,247
Other real estate owned .............. 60,806
Investments in unconsolidated subsi-
diaries and associated companies ... 170,378
Customers liability to this bank on
acceptances outstanding ............ 885,751
Intangible assets .................... 42,689
Other assets ......................... 1,326,362
-----------
Total assets ......................... $36,088,119
===========
LIABILITIES
Deposits:
In domestic offices ................ $19,486,153
Noninterest-bearing .......7,388,636
Interest-bearing .........12,097,517
In foreign offices, Edge and Agree-
ment Subsidiaries, and IBFs ........ 8,230,444
Noninterest-bearing ..........53,571
Interest-bearing ..........8,176,873
Federal funds purchased and securities
sold under agreements to repurchase
in domestic offices of the bank and
of its Edge and Agreement subsi-
diaries, and in IBFs:
Federal funds purchased ............ 1,207,881
Securities sold under agreements to
repurchase ....................... 350,492
Demand notes issued to the U.S.
Treasury ........................... 300,000
Other borrowed money ................. 530,559
Bank's liability on acceptances exe-
cuted and outstanding .............. 897,899
Subordinated notes and debentures .... 1,064,780
Other liabilities .................... 1,139,025
----------
Total liabilities .................... 33,207,233
==========
EQUITY CAPITAL
Perpetual preferred stock and related
surplus ........................... 75,000
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 1,342,860
Cumulative foreign Currency transla-
tion adjustments .................. ( 4,924)
------------
Total equity capital ................ 2,880,886
------------
Total liabilities, limited-life pre-
ferred stock, and equity capital .. $36,088,119
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of
the above-named bank do hereby declare that this Report of
Condition has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and
is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and
to the best of our knowledge and belief has been prepared in
conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true and correct.
+
J. Carter Bacot |
Alan R. Griffith | Directors
Samuel F. Chevalier |
<PAGE>
- -------------------------------------------------------------------------------
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
Check if an application to determine eligibility of a trustee pursuant to
Section 305(b)(2)
------
---------------------------
AMSOUTH BANK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
NOT APPLICABLE 63-0073530
(State of incorporation if (I.R.S Employer
not a U.S. national bank) Identification Number)
1900 FIFTH AVENUE NORTH 35303
BIRMINGHAM, ALABAMA (Zip code)
(Address of principal executive offices)
James D. Pruett
AmSouth Bank N.A.
Law Department
P.O. Box 11007
Birmingham, Alabama 35288
(205) 326-7607
(name, address and telephone number of agent for service)
---------------------------
PROTECTIVE LIFE CORPORATION
(Exact name of obligor as specified in its charter)
DELAWARE 95-2492236
(State or other jurisdiction of (I.R.S Employer
incorporation or organization) Identification Number)
2801 HIGHWAY 280 SOUTH 35223
BIRMINGHAM, ALABAMA (Zip code)
(Address of principal executive offices)
---------------------------
SUBORDINATED DEBT SECURITIES
(Title of the indenture securities)
- -------------------------------------------------------------------------------
154510
<PAGE>
Item 1. GENERAL INFORMATION.
Furnish the following information as to the trustee --
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency, Washington, D.C. 20220
Federal Reserve Bank, Atlanta, Georgia 30303
Federal Deposit Insurance Corporation, Washington, D.C 20429
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 3. VOTING SECURITIES OF THE TRUSTEE.
Not applicable.
Item 4. TRUSTEESHIPS UNDER OTHER INDENTURES.
Not applicable.
Item 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR OR
UNDERWRITERS.
Not applicable.
Item 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS OFFICIALS.
Not applicable.
Item 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR
OFFICIALS.
Not applicable.
Item 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE.
Not applicable.
Item 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
Not applicable.
2
<PAGE>
Item 10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF CERTAIN
AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
Not applicable.
Item 11. OWNERSHIP OR HOLDINGS BY THE TRUSTEES OF ANY SECURITIES OF A PERSON
OWNING 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR.
Not applicable.
Item 12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
Not applicable.
Item 13. DEFAULTS BY THE OBLIGOR.
(a) State whether there is or has been a default with respect to the
securities under this indenture. Explain the nature of any such default.
There is not and has not been any such default.
(b) If the trustee is a trustee under another indenture under which any
other securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, or is trustee for more than
one outstanding series of securities under the indenture, state whether
there has been a default under any such indenture or series, identify the
indenture or series affected, and explain the nature of any such default.
Not applicable.
Item 14. AFFILIATIONS WITH THE UNDERWRITERS.
Not applicable.
Item 15. FOREIGN TRUSTEE.
Not applicable.
Item 16. LIST OF EXHIBITS.
List below all exhibits filed as a part of this statement of eligibility.
1. A copy of the articles of association of the trustee as now in effect
(Exhibit 1 to Form T-1, file with Registration Statement
No. 22-23666).
2. A copy of the certificate of authority of the trustee to commence
business (Exhibit 2 to Form T-1, filed with Registration Statement
No. 22-23666).
3
<PAGE>
3. A copy of the authorization of the trustee to exercise corporate trust
powers (Exhibit 3 to Form T-1, filed with Registration Statement
No. 22-23666).
4. A copy of the existing bylaws of the trustee.
5. Not applicable.
6. The consent of the trustee required by Section 321(b) of the Act.
7. A copy of the latest report of condition of the trustee as the close of
business on December 31, 1993, published pursuant to the
requirements of the Comptroller of the Currency.
8. Not applicable.
9. Not applicable.
4
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the trustee,
AmSouth Bank, National Association, a corporation organized and existing under
the laws of the United States of America, has duly caused this statement of
eligibility and qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of Birmingham, State of Alabama on
the -------- day of March, 1994.
AMSOUTH BANK, NATIONAL ASSOCIATION
By /s/ T. FRANKLIN CALEY
--------------------------------
T. Franklin Caley
Vice President and Corporate Trust Officer
5
<PAGE>
EXHIBIT 4
<PAGE>
- ------------------------------------------------------------------------------
AAB 200-1
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article I -- Meetings of
Shareholders
Date: May, 1990
- ------------------------------------------------------------------------------
SECTION 1.1: ANNUAL MEETING
The annual meeting of the shareholders of this Bank
for the election of directors and for the trans-
action of any business that may properly come before
the meeting shall be held at its Main Office or at
such other place as the Board of Directors may
designate, on the third Thursday in April of each
year, but if no election shall be held on that day,
it may be held on any subsequent or adjourned day in
accordance with the provisions of the National
Banking Laws and the Articles of Association.
Notice of the annual meeting may be waived.
SECTION 1.2: SPECIAL MEETINGS
Except where specifically provided otherwise by
statute, special meetings of the shareholders may be
called for any purpose at any time by the Board of
Directors or by the holder(s) of at least a majority
of the shares of such stock at the time outstanding,
and such special meetings shall be called by mailing
to each shareholder notice in writing stating the
purpose thereof sixty (60) days before the time
fixed for the meeting. Such notice may be waived by
the shareholder otherwise entitled to receive such
notice.
SECTION 1.3: NOMINATIONS FOR DIRECTOR
Nominations for election to the Board of Directors
may be made by the Board of Directors.
SECTION 1.4: PROXIES
Shareholders may vote at any meeting of the share-
holders by proxies duly authorized in writing, but
no officer or employee of this Bank shall act as
proxy.
Page: 1
<PAGE>
- ------------------------------------------------------------------------------
AAB 200-1
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article I -- Meetings of
Shareholders
Date: May, 1990
- ------------------------------------------------------------------------------
SECTION 1.4 Proxies for any meeting shall be limited to that
(Cont...): meeting alone, and any adjournment thereof shall be
dated and shall be filed with the records of the
meeting.
SECTION 1.5: SHAREHOLDER LIST
For the purpose of determining shareholders entitled
to notice of or to vote at any meeting of share-
holders or any adjournment thereof, or shareholders
entitled to receive payment of any dividend, or in
order to make a determination of shareholders for
any other proper purpose, the Board of Directors may
provide that the stock transfer books of the Bank
shall be closed for a stated period but not to
exceed, in any case, thirty (30) days. If the stock
transfer books shall be closed for the purpose of
determining shareholders entitled to notice of or to
vote at a meeting of shareholders, such books shall
be closed for at least ten (10) days immediately
preceding such meeting. In lieu of closing the
stock transfer books, the Board of Directors may fix
in advance a date as the record date for any such
determination of shareholders, such date in any case
to be not more than fifty (50) days, and in case of
a meeting of shareholders, not less than ten (10)
days prior to the date on which the particular
action, requiring such determination of share-
holders, is to be taken. If the stock transfer
books are not closed and no record date is fixed for
the determination of shareholders entitled to notice
or to vote at a meeting of shareholders, or share-
holders entitled to receive payment of a dividend,
the date on which the resolution of the Board of
Directors declaring such dividend is adopted, as the
case may be, shall be the record date for such
determination of shareholders. When a determination
of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this
section, such determination shall apply to any
adjournment thereof, except where the determination
Page: 2
<PAGE>
- ------------------------------------------------------------------------------
AAB 200-1
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article I -- Meetings of
Shareholders
Date: May, 1990
- ------------------------------------------------------------------------------
SECTION 1.5 has been made through the closing of the stock
(Cont...): transfer books and the stated period of closing has
expired.
SECTION 1.6: QUORUM
Shares of the capital stock of the Bank representing
more than one-half of the par value of the total
capital stock outstanding, represented in person or
by proxy, shall constitute a quorum in all meetings
of shareholders, and at such meetings each share of
common stock shall be entitled to one (1) vote.
Page: 3
<PAGE>
AMSOUTH
- --------------------------------------------------------------------------------
AAB 200-2
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL
(AMSOUTH BANK N.A.)
Subject: Article II -- Directors
Date: January, 1994
- --------------------------------------------------------------------------------
SECTION 2.1: BOARD OF DIRECTORS: NUMBER, VACANCIES,
QUALIFICATIONS
The affairs of the Bank shall be managed by a Board
of Directors which shall consist of not less than
five (5) nor more than twenty-five (25) persons, the
exact number, within the limits stated, to be deter-
mined from time to time by resolution of a majority
of the full Board or by resolution of the share-
holders at any meeting thereof; provided, however,
that a majority of the full Board of Directors may
not increase the number of directors: (i) to a
number which exceeds by more than two (2) the number
of directors last elected by shareholders where such
number was fifteen (15) or less; and (ii) to a num-
ber which exceeds by more than four (4) the number
of directors last elected by shareholders where such
number was sixteen (16) or more, but in no event
shall the number of directors exceed twenty-five
(25). All the vacancies in the Board of Directors
occurring in the interval between the annual meet-
ings shall be filled by the remaining members of the
Board.
No person who shall have reached the age of sixty-
five (65) shall be eligible for election or re-
election as a director. No person shall be eligible
for election or re-election as a director of this
Bank (1) three years after retiring from active
business, (2) one year after permanent separation
from the business or professional organization with
which such person was primarily associated when
first elected a director, or (3) one year after mov-
ing his/her principal residence outside the State of
Alabama, whichever event first occurs. Any director
who is an officer of the Bank, or any subsidiary
thereof, shall resign as a director effective on the
date he has retired from or otherwise vacated his
office. On recommendation of the Nominating
Committee, the application to an individual of any
provision of this paragraph may be waived by the
Board of Directors. Any such waiver shall only be
effective on a year-to-year basis.
Page: 1
<PAGE>
AMSOUTH
- --------------------------------------------------------------------------------
AAB 200-2
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL
(AMSOUTH BANK N.A.)
Subject: Article II -- Directors
Date: January, 1994
- --------------------------------------------------------------------------------
SECTION 2.2: ORGANIZATION MEETING
The Chairman of the Board shall notify the directors
of their election and of the time and place for them
to meet for the organization of the new Board. This
meeting shall be held within one (1) week from the
time of their election, or as soon thereafter as
practicable. If at the time fixed for such a meet-
ing there shall be no quorum in attendance, the
directors-elect present may adjourn from time to
time until a quorum shall be obtained.
SECTION 2.3: REGULAR AND SPECIAL MEETINGS; FEES
Regular meetings of the Board of Directors shall be
held on the third Thursday in each month (unless
such date shall fall on a bank holiday, in which
event the meeting shall be upon the next succeeding
business day) at 10:00 a.m. or at such other hour as
may be designated by the Board. Special meetings of
the Board may be called by any of the Executive
Officers (as defined in Section 4.1), senior to the
Executive Vice Presidents, or any seven (7) direc-
tors, and at least one (1) day's notice of such
meetings shall be given to all directors, unless in
the opinion of the officer or directors calling the
meeting an emergency exists which requires less than
one (1) day's notice, in which event only such
notice need be given as such officer or directors
shall direct. Any of the directors not receiving
notice may subsequently waive such notice by filing
with the Secretary a paper in writing to that
effect, subscribed by him/her at any time within
five (5) days thereafter, or by subscribing his/her
approval of the minutes. The attendance of a
director at a meeting shall constitute a waiver of
notice of such meeting, except where a director
attends a meeting for the express purpose of
objecting to the transaction of any business because
the meeting is not lawfully called or convened.
Page: 2
<PAGE>
AMSOUTH
- --------------------------------------------------------------------------------
AAB 200-2
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL
(AMSOUTH BANK N.A.)
Subject: Article II -- Directors
Date: January, 1994
- --------------------------------------------------------------------------------
SECTION 2.3 By a resolution of the Board of Directors, the
(Cont ...): directors may be paid for their expenses, if any, for
attendance at each meeting of the Board of Directors
or any committee thereof, and may be paid a fixed
sum for attendance at each meeting or a stated
salary as director, or both.
SECTION 2.4: QUORUM
A majority of the Board of Directors shall consti-
tute a quorum for the transaction of business,
except when otherwise provided by law; but a lesser
number may adjourn any meeting, from time to time,
and the meeting may be held, as adjourned, without
further notice.
Page: 3
<PAGE>
AMSOUTH
- -------------------------------------------------------------------------------
AAB 200-3
Articles of Association Section: BY-LAWS
and By-Laws Manual (AMSOUTH BANK N.A.)
Subject: Article III - Committees
Date: January, 1994
- -------------------------------------------------------------------------------
SECTION 3.1: EXECUTIVE COMMITTEE
A. POWERS AND DUTIES. There shall be an Executive
Committee of the Board of Directors which, in the
interim between the meetings of the Board, shall
have and may exercise all of the authority and
powers of the Board of Directors to the extent per-
mitted by law. The Executive Committee shall also
review or approve extensions of credit in such
amounts as the Committee may by resolution from time
to time determine. The Executive Committee shall
keep the Board of Directors informed of the condi-
tion of the Bank and shall report to it at each
regular meeting any and all acts done and performed
by the Committee subsequent to the preceding meeting
of the Board, except such acts as are of a purely
formal nature. To exercise its powers and duties,
the Committee shall meet on each first and third
Thursday of the month or more frequently on the call
of its Chairman; the times of meeting to be fixed by
the Committee from time to time.
B. MEMBERSHIP. The Executive Committee shall
consist of such number of members drawn from the
Board of Directors, not officers of the Bank, as the
Board of Directors may determine by resolution from
time to time, and the following ex-officio members:
Chairman of the Board and President of the Bank, and
the Vice Chairman of the Bank. The Chief Executive
Officer of the Bank shall serve as chairman of the
committee. The chairman shall preside or designate
another member of the Committee to preside at meet-
ings of the committee. The members of the Executive
Committee who are not officers of the Bank, shall
serve terms of office as shall be specified at the
time of their election, which shall be staggered so
that a rotation of the membership shall be main-
tained. Any of such members will be eligible to
succeed themselves and shall serve until his/her
successor is elected.
Page: 1
<PAGE>
AMSOUTH
- -------------------------------------------------------------------------------
AAB 200-3
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article III - Committees
Date: January, 1994
- -------------------------------------------------------------------------------
SECTION 3.2: TRUST COMMITTEE
A. POWERS AND DUTIES. The Trust Committee of the
Board of Directors shall supervise and keep informed
as to the operation of the Trust Division of the
Bank and the operation of the accounts being admin-
istered by the Trust Division; consider and pass
upon all investments of trust funds and upon poli-
cies with respect to loans and investments; pass
upon the acceptance and closing of accounts; review
promptly the assets of a newly acquired account for
which the Bank has investment responsibilities;
review at least once during each calendar year, and
within fifteen (15) months of the last review, all
the assets held in or for each account where the
Bank has investment responsibilities; determine the
advisability of retaining or disposing of such
assets; and otherwise perform such duties as may be
provided by the Board. The Trust Committee may
create sub-committees consisting of Trust Division
officers and employees to assist in carrying out the
supervisory and review function of the Trust
Committee.
B. HOW ORGANIZED. The Trust Committee shall
consist of such number of directors who are not
officers of the Bank as shall be determined by
resolution of the Board of Directors from time to
time and, as ex-officio members, the directors of
the Bank who are also officers of the Bank and the
officer designated by the Board of Directors as head
of the Trust Division. The Committee shall be
chaired by the head of the Trust Division. The
members who are not officers of the Bank shall serve
a term of office as shall be specified at the time
of their election, which shall be staggered so that
a rotation of the membership shall be maintained.
Such members shall serve until their successors are
elected and shall be eligible to succeed themselves
in office. The Committee shall meet monthly; the
time and date to be fixed by the Committee from time
to time.
Page: 2
<PAGE>
AMSOUTH
- -------------------------------------------------------------------------------
AAB 200-3
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article III - Committees
Date: January, 1994
- -------------------------------------------------------------------------------
SECTION 3.3: AUDIT COMMITTEE
There shall be an Audit Committee of the Board of
Directors, to consist of such number of directors
who are not officers of the Bank as shall be deter-
mined by resolution of the Board of Directors from
time to time. Members of the Audit Committee shall
serve a term of office of three (3) years, with the
appropriate number of members rotating each year.
Members of this committee shall serve until their
successors are elected and shall be eligible for
reappointment. The Audit Committee shall meet
quarterly; the time and date to be fixed by the
committee from time to time. The Audit Committee
shall audit and examine the condition of the Bank
(including its Trust Division), shall review all
reports of audits of the Bank, shall review the
asset quality of the bank, shall monitor compliance
with the various laws and regulations to which the
Bank is subject, and shall report its findings and
recommendations to the Board of Directors.
SECTION 3.4: COMPENSATION COMMITTEE
The Compensation Committee of the Board of Directors
of this Bank's parent company, AmSouth Bancorpora-
tion, shall serve as the Compensation Committee of
this Bank and such Committee is hereby given the
power and authority on behalf of this Bank to take
all actions authorized or required in Section 3.12
of the By-Laws of AmSouth Bancorporation, or
otherwise.
SECTION 3.5: NOMINATING COMMITTEE
There shall be a Nominating Committee of the Board
of Directors, to consist of such number of directors
who are not officers of the Bank as shall be desig-
nated from time to time by resolution of the Board
of Directors, who shall serve for a term of three
(3) years, with the appropriate number of members
Page: 3
<PAGE>
AMSOUTH
- -------------------------------------------------------------------------------
AAB 200-3
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article III - Committees
Date: January, 1994
- -------------------------------------------------------------------------------
SECTION 3.5 rotating each year. Members shall serve until their
(Cont...): successors are elected and shall be eligible to suc-
ceed themselves. The Committee shall meet upon the
call of the Chairman; the time and date to be fixed
by the Committee from time to time.
All recommendations for potential nominees to the
Board of Directors shall be referred to the Nomina-
ting Committee which shall review the qualifications
of such potential nominees and make recommendations
to the Chief Executive Officer and the Board of
Directors with respect to such potential nominees.
The Nominating Committee will also review the struc-
ture of the Board and its operation and recommend
changes to the Board of Directors where appropriate.
The Committee will also review and recommend appro-
priate changes in Board compensation and Board
retirement policies.
SECTION 3.6: LOCAL BOARDS
The Board of Directors may appoint, or authorize an
executive officer to appoint, from time to time,
Local Boards of Directors for any one or more of the
offices of the Bank. The members of Local Boards of
Directors shall consist of such persons as shall be
recommended by the Chief Executive Officer of this
Bank upon the recommendation of the senior officer
for the geographic area in which is located the
office of the Bank on which Local Board the indi-
vidual will serve and shall be approved by vote of
the then members of the affected Local Board of
Directors. Such persons may, but are not required
to be, officers or directors of the Bank. Local
Boards of Directors shall serve at the pleasure of
the Board of Directors. No persons shall be elig-
ible for appointment to or to continue service on a
Local Board of Directors (1) who shall have reached
the age of 68, (2) three years after retiring from
active business, (3) one year after permanent sepa-
ration from the business or professional organiza-
tion with which such person was primarily associated
Page: 4
<PAGE>
AMSOUTH
- -------------------------------------------------------------------------------
AAB 200-3
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article III - Committees
Date: January, 1994
- -------------------------------------------------------------------------------
SECTION 3.6 when first appointed a Local Director, or (4) one
(Cont...): year after moving his/her principal residence out-
side the market area of the city that is being
served, whichever event first occurs. No Local
Director who is an officer of the Bank, or any
subsidiary thereof, shall be eligible for appoint-
ment or reappointment as a Local Director after he
has retired from or otherwise vacated his office.
The Chief Executive Officer may waive any of the
provisions of the preceding sentence effective on a
year-to-year basis. The duties of Local Boards of
Directors shall be those prescribed by resolution of
the Board of Directors.
SECTION 3.7: QUORUM
A majority of the respective committees shall
constitute a quorum for the transaction of business,
but any committee shall be authorized and empowered
to act by unanimous consent in the following manner,
without notice, call or formal meeting: Any resolu-
tion, proceeding or transaction, approved in writing
by all of the members of such committee by the sub-
scription of their names in writing to the same or
concurrent instruments or to the minutes thereof,
shall be valid and effective as if such action were
taken by unanimous vote at a regularly called meet-
ing of such committee and shall be entered in the
minutes of the respective committee, dated and
certified by the Secretary.
In the absence of a quorum at any meeting of any of
the respective committees, any of the Executive
Officers (or in the case of the Trust Committee, any
of the Executive Officers or the head of the Trust
Division) may designate an alternate director to
serve as a member of the committee at such meeting
in place of any absent member.
Page: 5
<PAGE>
AMSOUTH
- -------------------------------------------------------------------------------
AAB 200-3
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article III - Committees
Date: January, 1994
- -------------------------------------------------------------------------------
SECTION 3.8: OTHER COMMITTEES
The Board of Directors or the Executive Committee
may appoint, from time to time, members of the Board
to constitute other committees of one (1) or more
persons, for such purposes and with such powers as
the Board or the Executive Committee, whichever
appointed the Committee, may designate.
Page: 6
<PAGE>
AMSOUTH
- -------------------------------------------------------------------------------
AAB 200-4
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article IV - Officers and
Employees
Date: January, 1994
- -------------------------------------------------------------------------------
SECTION 4.1: GENERAL
(a) NUMBER. The officers of this Bank shall consist
of a Chairman of the Board of Directors, President,
and Chief Executive Officer, one or more Vice
Chairmen of the Board of Directors, one or more Vice
Presidents (one or more of whom may be designated by
such additional title as the Board of Directors may
determine), a Secretary, one or more Assistant
Secretaries, and may also include one or more Trust
Officers, one or more Assistant Vice Presidents, one
or more Assistant Trust Officers, a Controller, and
such other officers as the Board of Directors may
from time to time determine.
(b) EXECUTIVE OFFICERS; ORDER OF AUTHORITY. As used
in these By-Laws, the term "Executive Officers"
shall include the Chairman of the Board, President,
and Chief Executive Officer, the Vice Chairmen of
the Board, the Senior Executive Vice Presidents, and
the Executive Vice Presidents. Their "order of
authority" shall be the order in which their titles
are listed above; except that, where there are two
or more Vice Chairmen of the Board or two or more
Senior Executive Vice Presidents or Executive Vice
Presidents, their order of authority shall be as
designated by the Board or Compensation Committee.
Notwithstanding anything to the contrary contained
in this Section 4.1 or elsewhere in these By-Laws,
no one other than the members of the Management
Committee of this Bank's parent company, AmSouth
Bancorporation, shall participate or have the
authority to participate, otherwise than in the
capacity of a director, in major policy-making
functions of the Bank. All officers of this Bank
other than the members of the Management Committee
of this Bank's parent company, AmSouth Bancorpora-
tion, shall be excluded from major policy-making
functions of this Bank, otherwise than in the capa-
city of a director of this Bank. Executive officers
of all other AmSouth Bancorporation affiliates
Page: 1
<PAGE>
AMSOUTH
- -------------------------------------------------------------------------------
AAB 200-4
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article IV - Officers and
Employees
Date: January, 1994
- -------------------------------------------------------------------------------
SECTION 4.1 (other than members of the AmSouth Bancorporation
(Cont...): Management Committee) and of subsidiaries of this
Bank are excluded from participation in major
policy-making functions of this Bank.
(c) MANNER OF ELECTION; TERM OF OFFICE; REMOVAL.
The Board of Directors or its Executive Committee
shall approve the election of any person to an
office carrying the title of Vice President or
above. Appointment of employees and election of
persons to an office below Vice President shall be
made as provided in the Personnel Policy of AmSouth
Bancorporation. Compensation of all officers and
employees shall be fixed as provided in the Person-
nel Policy of AmSouth Bancorporation. Removal from
office of the Chairman of the Board and President,
and the Vice Chairman of the Board shall be by the
Board of Directors or by the Executive Committee.
All other officers and employees may be removed from
office by any of the three Executive Officers having
the highest order of authority or by any person so
authorized by the Personnel Policies and Procedures
of AmSouth Bancorporation.
(d) VACANCIES. Vacancies shall be filled as soon as
deemed practicable. In the event of a vacancy in
any of the offices of the Executive Officers, any of
the other Executive Officers remaining active may be
elected to fill the vacancy in such office for such
a period as the Board of Directors may determine or
until further action by the Board.
SECTION 4.2: CHAIRMAN OF THE BOARD AND PRESIDENT
The Chairman of the Board and President shall be the
Chief Executive Officer of the Bank and shall pre-
side or designate another Executive Officer to pre-
side at all regular, called, or special meetings of
the Board and adjournments thereof. Subject to the
Page: 2
<PAGE>
AMSOUTH
- -------------------------------------------------------------------------------
AAB 200-4
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article IV - Officers and
Employees
Date: January, 1994
- -------------------------------------------------------------------------------
SECTION 4.2 control of the Board of Directors, of the Executive
(Cont...): Committee and of other Committees of the Board hav-
ing authority, he shall be vested with authority to
act for the Bank in all matters to the extent that
such delegation of authority may not be contrary to
law, and shall have general charge of the Bank and
of its business and affairs, including authority
over the detailed operations of the Bank and over
its employees, and subject to the limitations
stated, with full power and authority to do and
perform in the name of the Bank all acts necessary
or proper in his opinion to be done and performed
and to execute for and in the name of the Bank all
instruments, agreements, and deeds which may be
authorized to be executed on behalf of the Bank or
are required by law.
SECTION 4.3: VICE CHAIRMEN OF THE BOARD
The Vice Chairmen of the Board shall, subject to the
control of the Board of Directors, the Executive
Committee, and other committees of the Board having
the authority and of the Chief Executive Officer, be
vested with authority to act for the Bank in all
matters to the extent that such delegation of au-
thority may not be contrary to law. They shall have
the same power to sign for the Bank as prescribed in
these By-Laws for the Chief Executive Officer. They
shall perform all duties incidental to the office
and shall perform such other duties as may be
assigned from time to time by the Board of Directors
or the Chief Executive Officer. In the absence of
the Chief Executive Officer, one of them shall
preside at meetings of stockholders, the Board of
Directors, and the Executive Committee.
SECTION 4.4: OTHER EXECUTIVE OFFICERS
In the absence of the Chief Executive Officer and of
the Vice Chairmen, and unless otherwise directed by
the Chief Executive Officer or one of the Vice
Page: 3
<PAGE>
AMSOUTH
- -------------------------------------------------------------------------------
AAB 200-4
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article IV - Officers and
Employees
Date: January, 1994
- -------------------------------------------------------------------------------
SECTION 4.4 Chairmen, the Executive Officers, in their order of
(Cont...): authority, shall preside at the meetings of the
Board. Each of the Executive Officers shall (sub-
ject to the control of the Board of Directors and of
the committees of the Board having authority and to
the control of the Chief Executive Officer or the
Vice Chairmen) have and may exercise authority to
act for the Bank in all matters to the extent that
such delegation of authority may not be contrary to
law and in general to discharge the functions and to
exercise the authority vested in the Chief Executive
Officer in matters not otherwise acted upon by the
Chief Executive Officer or by other Executive
Officers prior in their order of authority. Subject
to the limitations stated above, such authority of
each Executive Officer shall include authority over
the operations of the Bank within his assigned areas
of responsibility and over assigned employees, and
authority to do and perform in the name of the Bank
all acts necessary or proper, in his opinion, to be
done and performed, and to execute for and in the
name of the Bank all instruments, agreements, and
deeds which may be authorized to be executed on
behalf of the Bank or required by law.
SECTION 4.5: VICE PRESIDENTS
Any Vice President shall have authority to execute
in the name of the Bank stock certificates of the
Bank and transfers, conveyances, certificates,
releases, satisfactions, authentications, options,
proxies, leases, including oil, gas and other
mineral leases, agreements, or other instruments
pertaining to investment, assets, or commercial
operations of the Bank or powers held or controlled
by the Bank, other than in a fiduciary capacity or
constituting a function of the Trust Division as to
which authority is vested in Vice Presidents and
Trust Officers. The Vice Presidents shall have such
other powers as are from time to time conferred upon
them by the Board of Directors, committees of the
Board, and the Executive Officers.
Page: 4
<PAGE>
AMSOUTH
- --------------------------------------------------------------------------------
AAB 200-4
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article IV - Officers and
Employees
Date: January, 1994
- --------------------------------------------------------------------------------
SECTION 4.6: HEAD OF THE TRUST DIVISION
The Executive Vice President and Trust Officer, or
such other officer designated by the Board of
Directors as the head of the Trust Division shall
have all of the powers and authority vested in any
Vice President and Trust Officer, and in addition,
shall be in charge of and exercise general
supervision and management over the affairs of the
Trust Division; shall be empowered, in his
discretion, to appoint all necessary agents and
attorneys, and shall have such other duties and
powers as shall be designated by the Board of
Directors.
SECTION 4.7: VICE PRESIDENTS AND TRUST OFFICERS
Each Vice President and Trust Officer shall have all
of the powers vested in any Trust Officer or Assis-
tant Trust Officer, and in addition is empowered to
execute all deeds, conveyances, mortgages, con-
tracts, bonds, bills of sale, trust or agency agree-
ments, indentures or deeds of trust, notes, assign-
ments, powers of attorney or of substitution, or any
other instrument incident to the acceptance of any
trust, or the pledge, sale, or other disposition of
any property, rights, or powers held or controlled
by the Bank in any fiduciary capacity; to purchase,
sell, pledge, or otherwise dispose of stocks, bonds,
or any other securities, or property of any kind,
real or personal, for trust accounts; and to perform
such other duties as may be authorized by the Board
of Directors, Executive Committee, or Trust
Committee.
Any officer who may be designated as Senior Vice
President and Trust Officer, or Vice President and
Investment Officer, or Vice President and Senior
Trust Investment Officer, or Vice President and
Real Estate Officer shall have the same powers as
a Vice President and Trust Officer, and such other
authority and responsibility as may be provided by
the Board of Directors, the Trust Committee, or by
the head of the Trust Division.
Page: 5
<PAGE>
AMSOUTH
- --------------------------------------------------------------------------------
AAB 200-4
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article IV - Officers and
Employees
Date: January, 1994
- --------------------------------------------------------------------------------
SECTION 4.8: TRUST OFFICERS AND ASSISTANT TRUST OFFICERS
Each Trust Officer who is not also a Vice President
and any Assistant Trust Officer and any other
officer of this Bank assigned to work in the Trust
Division of this Bank shall have the power to
execute all certificates, releases, satisfactions,
authentications (including authentication of bonds),
proxies, leases (including oil, gas, and other
mineral leases), transfers, receipts, agreements, or
other instruments pertaining to or incident to the
management or handling of any property, right, or
powers held or controlled by the Bank in any fidu-
ciary capacity, or pertaining to or incident to the
management or handling of any trust accounts under
the supervision or management of the Bank.
Each Trust Officer and each Assistant Trust Officer
and any other officer of this Bank assigned to work
in the Trust Division of this Bank in addition may
execute in the name of the Bank stock certificates
of corporations for which the Bank is transfer agent
or registrar, and mortgages, indentures, or deeds of
trust of a corporate nature in connection with which
the Bank is to act in trustee for holders of bonds
or debentures. Each Trust Officer and each Assist-
ant Trust Officer and any other officer of this Bank
assigned to work in the Trust Division of this Bank
shall also have the authority to affix and attest
the corporate seal, and perform such other duties as
may be authorized by the Board of Directors, the
Trust Committee, or by the head of the Trust
Division.
SECTION 4.9: CONTROLLER
The Controller shall have custody of the Bank's
general acounting records, shall prepare financial
statements, tax returns, profit plans, and reports
to regulatory authorities and shall have such other
duties as the Chief Executive Officer or Chief
Operating Officer may assign him from time to time.
Page: 6
<PAGE>
AMSOUTH
- --------------------------------------------------------------------------------
AAB 200-4
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article IV - Officers and
Employees
Date: January, 1994
- --------------------------------------------------------------------------------
SECTION 4.10: SECRETARY
The Secretary shall have the custody of the records
and shall keep and record the minutes of the meet-
ings of stockholders and of the Board of Directors
and of all Committees of the Board, but any other
officer may also act as secretary of the meetings
and attest and certify minutes of the Board and
Committees thereof. Minutes shall be signed by the
Chairman of the meeting. The Secretary shall per-
form such other duties as may be required by an
Executive Officer or by the Board of Directors or
Committee thereof. The Secretary shall also perform
and discharge the usual functions of corporate
secretary and shall affix and attest the corporate
seal. Any officer of the Bank shall also be vested
with the authority to affix and attest the corporate
seal.
SECTION 4.11: EXERCISE OF AUTHORITY OF CHIEF EXECUTIVE OFFICER BY
OTHER EXECUTIVE OFFICERS
In case of the disqualification, death, resignation,
or removal of the Chief Executive Officer, and until
the Board of Directors has filled the vacancy, Vice
Chairmen in their order of authority, shall act as
such Chief Executive Officer and with his full au-
thority. In case of the absence, disqualification,
death, resignation or removal of all the Vice
Chairmen, the ordinary powers of the Chief Executive
Officer shall be exercised and his duties discharged
by an officer designated by the Board or the
Executive Committee until the Board has filled the
vacancy, but any extraordinary powers of the Chief
Executive Officer shall be exercised by such desig-
nated officer only when authorized by the Board of
Directors or the Executive Committee.
Page: 7
<PAGE>
AMSOUTH
- --------------------------------------------------------------------------------
AAB 200-4
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article IV - Officers and
Employees
Date: January, 1994
- --------------------------------------------------------------------------------
SECTION 4.12: SPECIFIC POWERS OF CERTAIN OFFICERS
Any Executive Officer, any Vice President, any
Assistant Vice President, or other officer, or any
of them, and such other person or persons as may be
authorized by the Board of Directors or by any
committee of the Board with authority in the pre-
mises, or by any of the Executive Officers, shall
have the power to receipt for all moneys due or pay-
able to the Bank from any source whatever, and to
sign and endorse checks, drafts, warrants, and other
choices in action in the name of the Bank and in its
behalf.
The Chief Executive Officer and the Vice Chairman
(and, if and to the extent authorized by one (1) of
them, any Executive Officer, any other officer, or
any employee) shall severally have the right and
power to make loans (subject to limitations which
may be imposed from time to time by any of them).
Such officers of the Bank as may be authorized by
the Board of Directors or pursuant to a policy
adopted by the Board of Directors shall severally
have the right and authority to purchase investment
securities permitted by law for and on account of
the Bank and the right and power to sell and dispose
of any stocks, bonds, debentures or any other
securities of any kind held or owned by the Bank,
and they or any of them shall be and are hereby
authorized to make any and all necessary and proper
transfers of such ownership in any and all cases
where sales thereof are made.
SECTION 4.13: DUAL OFFICES
Any two or more offices of this Bank may, except
where prohibited by law, be held by the same indi-
vidual. In cases where an individual holds more
than one office, that person shall have the author-
ity of all offices so held and shall occupy the
"order of authority" provided in these by-laws for
the more senior of the offices held.
Page: 8
<PAGE>
AMSOUTH
- --------------------------------------------------------------------------------
AAB 200-4
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article IV - Officers and
Employees
Date: January, 1994
- -------------------------------------------------------------------------------
SECTION 4.14: BONDS OF OFFICERS AND EMPLOYEES
The Board of Directors shall from time to time
designate the officers and employees who shall be
required to give bond and fix the amounts thereof.
Page: 9
<PAGE>
AMSOUTH
- -------------------------------------------------------------------------------
AAB 200-5
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article V - Stock and Stock
Certificates
Date: January, 1994
- -------------------------------------------------------------------------------
SECTION 5.1: TRANSFERS
Transfer of stock in this Bank can only be
made in writing upon the transfer books of
the Bank by the Secretary upon production of
a certificate or certificates of stock with
transfer and assignment endorsed thereon by
the person or persons in whose name the
certificate was issued, his/her personal
representative or duly authorized attorney in
fact, following such procedures as are
commonly in use by stock transfer agents and
as may be required by applicable Federal and
State law. The old certificate or
certificates must be surrendered and canceled
before the new certificate is issued or
delivered.
SECTION 5.2: STOCK CERTIFICATES
Certificates of stock of this Bank shall be
signed by or in the name of any of the
Executive Officers (other than the Executive
Vice Presidents), manually or by facsimile,
engraved or printed signature, shall also be
manually signed by the Secretary, and shall
be sealed with the seal of the Bank or shall
bear a facsimile of such seal. Where blank
certificates are in supply bearing the
engraved or printed signature of a former
officer or officers, the Board or Executive
Committee may adopt and authorize the use of
the same notwithstanding that such person may
have ceased to be such officer at the time
when the certificate shall be actually
issued.
SECTION 5.3: LOST OR DESTROYED CERTIFICATES
In case of loss or destruction of any
certificate of stock, the holder or owner
thereof shall give notice thereof to the
division or department of the Bank then
handling transfers of stock of the Bank, and
if such holder or owner shall desire the
issue of a new certificate in place of the
one lost or destroyed, he/she shall make
affidavit of such loss or
Page: 1
<PAGE>
AMSOUTH
- -------------------------------------------------------------------------------
AAB 200-5
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article V - Stock and Stock
Certificates
Date: January, 1994
- -------------------------------------------------------------------------------
SECTION 5.3 destruction and deliver the same to the
(Cont...): division or department of the Bank then
handling transfers of stock of the Bank, and
accompany the same with a bond, with security
satisfactory to this Bank, to indemnify and
save harmless this Bank against any loss,
cost, or damage, in case the certificate
reported lost or destroyed should thereafter
be presented to this Bank, or arising out of
the issue of such new certificate.
Page: 2
<PAGE>
AMSOUTH
- -------------------------------------------------------------------------------
AAB 200-6
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article VI - Corporate Seal
Date: May, 1990
- -------------------------------------------------------------------------------
The common seal of this Bank shall be a
circular die with the words "AmSouth Bank,
National Association."
Page: 1
<PAGE>
AMSOUTH
- --------------------------------------------------------------------------------
AAB 200-7
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article VII - Miscellaneous
Provisions
Date: January, 1994
- --------------------------------------------------------------------------------
SECTION 7.1: FISCAL YEAR
The fiscal year of the Bank shall be the calendar
year.
SECTION 7.2: CONVEYANCES OF REAL ESTATE
All conveyances of real estate where the sales
price is in such amount as may be fixed from time
to time by resolution of the Board of Directors or
Executive Committee, other than conveyances by the
Bank in a fiduciary capacity, shall be authorized
by the Board of Directors or Executive Committee.
All other conveyances of real estate shall be made
in accordance with policies adopted from time to
time by the Management Committees of AmSouth
Bancorporation. All conveyances of real estate
shall be executed in the name of the Bank by any
Executive Officer, or any Vice President and
attested by the Secretary, or any Assistant Vice
President or other officer of the Bank who is
severally authorized to affix the corporate seal
of the Bank thereto.
SECTION 7.3: BANKING HOURS
The main office and the branches of this Bank
shall be open for business on such days and during
such hours as shall be determined from time to
time by any of the Executive Officers of the Bank,
unless one of said days falls on one of the
following holidays: New Year's Day, Memorial Day,
the Fourth of July, Labor Day, Thanksgiving Day,
and Christmas Day, or on such other days as may be
authorized by law or by regulation of governmental
authorities and approval by one (1) of the three
(3) Executive Officers highest in order of
authority.
For the purpose of allowing time to process items,
prove balances, and make the necessary entries on
the Bank's books to determine its position for the
Page: 1
<PAGE>
AMSOUTH
- --------------------------------------------------------------------------------
AAB 200-7
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article VII - Miscellaneous
Provisions
Date: January, 1994
- --------------------------------------------------------------------------------
SECTION 7.3 day, 2:00 p.m. is hereby fixed as a cut-off hour
(Cont...): for the handling of money and items and the making
of entries on the books of the Bank. Any item or
deposit of money received on any day after such
cut-off hour or after the close of the banking day
shall be treated as received by the Bank at the
opening of the next banking day.
All hours mentioned on this and the other sections
of these by-laws shall be deemed to refer to
Central Standard Time or Central Daylight Time,
whichever may be applicable at the time.
Page: 2
<PAGE>
AMSOUTH
- --------------------------------------------------------------------------------
AAB 200-7
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article VIII - Amendments
Provisions
Date: May, 1990
- --------------------------------------------------------------------------------
These By-Laws may be changed or amended by the
vote of a majority of the entire Board of
Directors at any meeting, without previous notice.
Page: 1
<PAGE>
EXHIBIT 5
NONE
<PAGE>
EXHIBIT 6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321 (b) of the Trust Indenture Act
of 1939, in connection with the proposed issue of Subordinated Debt Securities
of Protective Life Corporation., we hereby consent that reports of examinations
by Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon request therefor.
Dated March 25, 1994
AMSOUTH BANK, NATIONAL ASSOCIATION
BY T. FRANKLIN CALEY
------------------------
T. Franklin Caley
Vice President and
Corporate Trust Officer
<PAGE>
EXHIBIT 7
<PAGE>
Call Date: 12/31/93 ST-BK: 01-0320 FFIEC 031
Page RC-1
Legal Title of Bank: AmSouth Bank N.A.
Address: P.O. Box 11007
City, State Zip: Birmingham, AL 35202
FDIC Certificate No.: 0 2 7 8 2
---------
Consolidated Report of Condition for Insured Commercial and State-Chartered
Savings Banks for December 31, 1993
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in Thousands RCFD Bil Mil Thou
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
ASSETS //////////////////
1. Cash and balances due from depository institutions (from Schedule RC-A): //////////////////
a. Noninterest-bearing balances and currency and coin(1). . . . . . . . . . . . . . . . . . 0081 475,216 1.a.
b. Interest-bearing balances(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0071 0 1.b.
2. Securities (from Schedule RC-B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0390 1,675,826 2.
3. Federal funds sold and securities purchased under agreements to resell in domestic offices //////////////////
of the bank and of its Edge and Agreement subsidiaries, and in IBFs: //////////////////
a. Federal funds sold . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0276 32,250 3.a.
b. Securities purchased under agreements to resell. . . . . . . . . . . . . . . . . . . . . 0277 93,361 3.b.
4. Loans and lease financing receivables: //////////////////
a. Loans and leases, net of unearned income (from Schedule RC-C) RCFD 2122 6,027,867 ////////////////// 4.a.
b. LESS: Allowance for loan and lease losses. . . . . . . . . . RCFD 3123 76,638 ////////////////// 4.b.
c. LESS: Allocated transfer risk reserve. . . . . . . . . . . . RCFD 3128 0 ////////////////// 4.c.
d. Loans and leases, net of unearned income,
allowance, and reserve (item 4.a minus 4.b and 4.c). . . . . . . . . . . . . . . . . . . 2125 5,951,229 4.d.
5. Assets held in trading accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2146 94,644 5.
6. Premises and fixed assets (including capitalized leases). . . . . . . . . . . . . . . . . . . 2145 135,657 6.
7. Other real estate owned (from Schedule RC-M). . . . . . . . . . . . . . . . . . . . . . . . . 2150 10,163 7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M). . . 2130 13,418 8.
9. Customers' liability to this bank on acceptances outstanding. . . . . . . . . . . . . . . . . 2155 6,263 9.
10. Intangible assets (from Schedule RC-M). . . . . . . . . . . . . . . . . . . . . . . . . . . . 2143 52,972 10.
11. Other assets (from Schedule RC-F) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2160 260,683 11.
12. Total assets (sum of items 1 through 11). . . . . . . . . . . . . . . . . . . . . . . . . . . 2170 8,801,882 12.
<FN>
- -------------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
</TABLE>
11
<PAGE>
Call Date: 12/31/93 ST-BK: 01-0320 FFIEC 031
Page RC-2
Legal Title of Bank: AmSouth Bank N.A.
Address: P.O. Box 11007
City, State Zip: Birmingham, AL 35202
FDIC Certificate No.: 0 2 7 8 2
---------
Schedule RC--Continued
<TABLE>
<CAPTION>
Dollar Amounts in Thousands //////// Bil Mil Thou
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, Part I). . . RCON 2200 6,521,107 13.a.
(1) Noninterest-bearing(1). . . . . . . . . . . . . . . . . RCON 6631 1,516,492 ////////////////////// 13.a.(1)
(2) Interest-bearing. . . . . . . . . . . . . . . . . . . . RCON 6636 5,004,615 ////////////////////// 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E, //////////////////////
part II) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFN 2200 11,194 13.b.
(1) Noninterest bearing. . . . . . . . . . . . . . . . . . . RCFN 6631 0 ////////////////////// 13.b.(1)
(2) Interest-bearing . . . . . . . . . . . . . . . . . . . . RCFN 6636 11,194 ////////////////////// 13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase domestic offices //////////////////////
of the bank and of its Edge and Agreements subsidiaries, and in IBFs: //////////////////////
a. Federal funds purchased. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 0278 381,443 14.a.
b. Securities sold under agreements to repurchase . . . . . . . . . . . . . . . . . . . . RCFD 0279 445,956 14.b.
15. Demand notes issued to the U.S. Treasury. . . . . . . . . . . . . . . . . . . . . . . . . . RCON 2840 300,000 15.
16. Other borrowed money. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 2850 226,263 16.
17. Mortgage indebtedness and obligations under capitalized losses. . . . . . . . . . . . . . . RCFD 2910 180 17.
18. Bank's liability on acceptances executed and outstanding. . . . . . . . . . . . . . . . . . RCFD 2920 6,263 18.
19. Subordinated notes and debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 3200 0 19.
20. Other liabilities (from Schedule RC-G). . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 2930 173,632 20.
21. Total liabilities (sum of items 13 through 20). . . . . . . . . . . . . . . . . . . . . . . RCFD 2948 8,066,038 21.
//////////////////////
22. Limited-life preferred stock and related surplus. . . . . . . . . . . . . . . . . . . . . . RCFD 3282 0 22.
EQUITY CAPITAL //////////////////////
23. Perpetual preferred stock and related surplus . . . . . . . . . . . . . . . . . . . . . . . RCFD 3838 0 23.
24. Common stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 3230 16,050 24.
25. Surplus (exclude all surplus related to preferred stock). . . . . . . . . . . . . . . . . . RCFD 3839 267,562 25.
26. a. Undivided profits and capital reserves . . . . . . . . . . . . . . . . . . . . . . . . RCFD 3632 452,232 26.a.
b. LESS: Net unrealized loss on marketable equity securities. . . . . . . . . . . . . . . RCFD 0297 0 26.b.
27. Cumulative foreign currency translation adjustments . . . . . . . . . . . . . . . . . . . . RCFD 3284 0 27.
28. Total equity capital (sum of items 23 through 27) . . . . . . . . . . . . . . . . . . . . . RCFD 3210 735,844 28.
29. Total liabilities, limited-life preferred stock, and equity capital (sum of items 21, 22 //////////////////////
and 28. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 3300 8,801,882 29.
</TABLE>
<TABLE>
<CAPTION>
Memorandum
To be reported only with the March Report of Condition.
<S> <C> <C> <C>
1. Indicate in the box at the right the number of the statement below that best describes the
most comprehensive level of auditing work performed for the bank by independent external Number
auditors as of any date during 1992 . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 6724 N/A M.1.
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- -------------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
12
