<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 8, 1997
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------
<TABLE>
<S> <C> <C>
PROTECTIVE LIFE CORPORATION DELAWARE 95-2492236
PLC CAPITAL TRUST II DELAWARE 72-6182542
PLC CAPITAL TRUST III DELAWARE 72-6182543
PLC CAPITAL TRUST IV DELAWARE 72-6182544
(Exact name of registrant as specified in its (I.R.S. Employer Identification
charter) (State or other jurisdiction of No.)
incorporation or organization)
</TABLE>
2801 HIGHWAY 280 SOUTH, BIRMINGHAM, ALABAMA 35223
(205) 879-9230
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
C/O DEBORAH J. LONG, ESQ.
SENIOR VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
PROTECTIVE LIFE CORPORATION
2801 HIGHWAY 280 SOUTH
BIRMINGHAM, ALABAMA 35223
(205) 879-9230
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
------------------------------
COPIES TO:
MICHAEL W. BLAIR, ESQ.
DEBEVOISE & PLIMPTON
875 THIRD AVENUE
NEW YORK, NEW YORK 10022
--------------------------
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/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
AMOUNT TO PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF BE REGISTERED OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED (1) PER UNIT (1) OFFERING PRICE (1) FEE (2)
<S> <C> <C> <C> <C>
Protective Life Corporation Debt Securities
(3)(4); Protective Life Corporation Preferred
Stock (4); Protective Life Corporation Common
Stock (4)(5); Protective Life Corporation Stock
Purchase Contracts(6); Protective Life
Corporation Stock Purchase Units(6); PLC Capital
Trust II Preferred Securities; PLC Capital Trust
III Preferred Securities; PLC Capital Trust IV
Preferred Securities; Protective Life
Corporation Guarantees and back-up undertakings
with respect to the Preferred Securities of the
PLC Capital Trusts (7).......................... $200,000,000 100% $200,000,000 $60,607
</TABLE>
(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 and includes such indeterminate
principal amount of Debt Securities, Preferred Stock, Common Stock, Stock
Purchase Contracts and Stock Purchase Units of Protective Life Corporation
and such indeterminable number of Preferred Securities of PLC Capital Trust
II, PLC Capital Trust III and PLC Capital Trust IV as may from time to time
be issued at indeterminate prices.
(2) The registration fee has been calculated on the basis of the maximum
offering price of all securities listed in accordance with Rule 457(o) under
the Securities Act of 1933.
(3) Includes subordinated debentures which may be purchased by the PLC Capital
Trusts with the proceeds of the sale of Preferred Securities. Any such
subordinated debentures may later be distributed to the holders of Preferred
Securities upon the occurrence of certain events.
(4) Includes such indeterminate number of shares of Common Stock and Preferred
Stock, and indeterminate number of Debt Securities, as may be issued upon
conversion or exchange of any other Debt Securities or Preferred Stock that
provide for conversion or exchange into other securities.
(5) Includes rights to purchase Series A Junior Participating Cumulative
Preferred Stock of Protective Life Corporation. Prior to the occurrence of
certain events, the rights will not be exercisable or evidenced separately
from the Protective Life Corporation Common Stock.
(6) Includes an indeterminable number of shares of Common Stock to be issuable
by Protective Life Corporation upon settlement of the Stock Purchase
Contracts or Stock Purchase Units issued by Protective Life Corporation.
(7) No separate consideration will be received for the Guarantee or back-up
undertakings. Includes the rights of holders of the Preferred Securities
under the Guarantees and back-up undertakings, consisting of obligations of
Protective Life Corporation, as set forth in the applicable Amended and
Restated Declaration of Trust (including the obligation to pay expenses of
the applicable PLC Capital Trust), the Subordinated Indenture and any
applicable supplemental indentures thereto, in each case as further
described in the Registration Statement. No separate registration fee is
required for the Guarantees in accordance with Rule 457.
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.
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<PAGE>
SUBJECT TO COMPLETION DATED JULY 8, 1997
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 AND ACCOMPANYING 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>
PROSPECTUS SUPPLEMENT
(TO PROSPECTUS DATED , 1997)
PREFERRED SECURITIES
PLC CAPITAL TRUST II
% TRUST ORIGINATED PREFERRED SECURITIES-SM- ("TOPRS(-SM-)")
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
GUARANTEED TO THE EXTENT SET FORTH HEREIN BY
PROTECTIVE LIFE CORPORATION
--------------------------
The % Trust Originated Preferred Securities (the "Preferred Securities")
offered hereby represent undivided beneficial interests in the assets of PLC
Capital Trust II, a statutory business trust formed under the laws of the State
of Delaware ("PLC Capital" or the "Trust"). Protective Life Corporation, a
Delaware corporation ("Protective Life" or the "Company"), will directly or
indirectly own all the common securities (the "Common Securities" and, together
with the Preferred Securities, the "Trust Securities") representing undivided
beneficial interests in the assets of PLC Capital. PLC Capital exists for the
sole purpose of issuing the Trust Securities and investing the proceeds thereof
in an equivalent amount of % Subordinated Debentures, due , Series
(the "Subordinated Debt Securities") of Protective Life. The Subordinated Debt
Securities and the Preferred Securities in respect of which this Prospectus
Supplement is being delivered shall be referred to herein as the "Offered
Securities." The Subordinated Debt Securities will mature on ,
(such date, and any such other date to which the maturity of the Subordinated
Debt Securities may be shortened or extended as described under "Description of
the Subordinated Debt Securities-General," is hereinafter referred to as the
"Stated Maturity"). The Subordinated Debt Securities when
(CONTINUED ON NEXT PAGE)
SEE "RISK FACTORS" BEGINNING ON PAGE S-4 OF THIS PROSPECTUS SUPPLEMENT FOR
CERTAIN INFORMATION RELEVANT TO AN INVESTMENT IN THE PREFERRED SECURITIES,
INCLUDING THE PERIOD AND CIRCUMSTANCES DURING AND UNDER WHICH PAYMENTS OF
DISTRIBUTIONS ON THE PREFERRED SECURITIES MAY BE DEFERRED AND THE RELATED UNITED
STATES FEDERAL INCOME TAX CONSEQUENCES OF SUCH DEFERRAL.
Application will be made to list the Preferred Securities on the New York
Stock Exchange (the "New York Stock Exchange"). If so approved, trading of the
Preferred Securities on the New York Stock Exchange is expected to commence
within a 30-day period after the initial delivery of the Preferred Securities.
See "Underwriting."
--------------------------
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
OFFERING PRICE (1) COMMISSION(2) TRUST (3)(4)
<S> <C> <C> <C>
Per Preferred Security.................... $25.00 (3) $25.00
Total..................................... $ (3) $
</TABLE>
(1) Plus accrued distributions, if any, from , 1997.
(2) PLC Capital and Protective Life 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 of the sale of the Preferred
Securities will be invested in the Subordinated Debt Securities, Protective
Life has agreed to pay to the Underwriters as compensation (the
"Underwriters' Compensation") for their arranging the investment therein of
such proceeds $ per Preferred Security (or $ in the
aggregate); provided, that such compensation for sales of or more
Preferred Securities to a single purchaser will be $ per Preferred
Security. Therefore, to the extent of such sales, the actual amount of
Underwriters' Compensation will be less than the aggregate amount specified
in the preceding sentence. See "Underwriting."
(4) Expenses of the offering which are payable by Protective Life estimated to
be $ .
--------------------------
The Preferred Securities are offered by the several Underwriters subject to
receipt and acceptance by them, approval of certain legal matters by counsel for
the Underwriters and certain other conditions. The Underwriters reserve the
right to withdraw, cancel or modify such offer and to reject orders in whole or
in part. It is expected that delivery of the Preferred Securities will be made
only in book-entry form through the facilities of The Depository Trust Company,
on or about , 1997.
--------------------------
MERRILL LYNCH & CO.
----------------
THE DATE OF THIS PROSPECTUS SUPPLEMENT IS , 1997.
(-SM-) "TRUST ORIGINATED PREFERRED SECURITIES" AND "TOPRS" ARE SERVICE MARKS OF
MERRILL LYNCH & CO., INC.
<PAGE>
(CONTINUED FROM PREVIOUS PAGE)
issued will be unsecured obligations of Protective Life and will be subordinate
and junior in right of payment to other indebtedness of the Company, as
described herein. Upon an Event of Default under the Declaration (as defined
herein), the holders of Preferred Securities will have a preference over the
holders of the Common Securities with respect to payments in respect of
distributions and payments upon redemption, liquidation and otherwise.
Holders of the Preferred Securities are entitled to receive cumulative cash
distributions at an annual rate of percent of the liquidation amount of $25
per Preferred Security, accruing from the date of original issuance and payable
quarterly in arrears on March 31, June 30, September 30 and December 31 of each
year, commencing ("distributions"). The payment of distributions out of
moneys held by PLC Capital and payments on liquidation of PLC Capital or the
redemption of Preferred Securities, as set forth below, are guaranteed on a
subordinated basis by Protective Life (the "Preferred Securities Guarantee") to
the extent described herein and under "Description of the Preferred Securities
Guarantees" in the accompanying Prospectus. The Preferred Securities Guarantee
covers payments of distributions and other payments on the Preferred Securities
only if and to the extent that PLC Capital has funds available therefor, which
will only occur if Protective Life has made a payment of interest or principal
or other payments on the Subordinated Debt Securities held by PLC Capital as its
sole asset. The Preferred Securities Guarantee, when taken together with the
Company's obligations under the Subordinated Debt Securities and the
Subordinated Indenture (as defined in "Description of the Subordinated Debt
Securities") and its obligations under the Declaration, including its obligation
as issuer of the Subordinated Debt Securities to pay costs, expenses, debts and
obligations of PLC Capital (other than with respect to the Trust Securities),
provide a full and unconditional guarantee on a subordinated basis of amounts
due on the Preferred Securities. See "Risk Factors--Rights under the Preferred
Securities Guarantee" herein. The obligations of Protective Life under the
Preferred Securities Guarantee rank (i) subordinate and junior in right of
payment to all present and future Senior Indebtedness (as such term is defined
in the Subordinated Indenture), (ii) PARI PASSU with the Common Securities
Guarantee to be dated as of , 1997 (the "Common Guarantee") with
respect to the Common Securities issued by PLC Capital, the Subordinated Debt
Securities, the Company's guarantee (the "Series A Guarantee") of PLC Capital
L.L.C.'s 9% Cumulative Monthly Income Preferred Securities, Series A, having an
aggregate liquidation amount of $55 million (the "Series A Preferred
Securities"), the Company's 9% Subordinated Debentures, due 2024 Series A (the
"Series A Subordinated Debentures"), having an aggregate principal amount of
$69.6 million, the Company's guarantee (the "8 1/4% Preferred Guarantee") of PLC
Capital Trust I's 8 1/4% Trust Originated Preferred Securities, having an
aggregate liquidation amount of $75 million (the "Trust I Preferred
Securities"), the Company's Guarantee ("the 8 1/4% Common Guarantee" and
together with the 8 1/4% Preferred Guarantee, the "8 1/4% TOPrS Guarantees") of
PLC Capital Trust I's 8 1/4% Trust Originated Common Securities (the "Trust I
Common Securities" and together with the Trust I Preferred Securities, the
"Trust I TOPrS"), having an aggregate liquidation amount of $2.3 million, the
Company's 8 1/4% Subordinated Debentures due 2027, Series B (the "Series B
Subordinated Debentures"), having an aggregate principal amount of $77.3 million
and any other liabilities or obligations that may be PARI PASSU by their terms
and (iii) senior to the Company's common stock, the most senior preferred or
preference stock now or hereafter issued by the Company and with any guarantee
now or hereafter entered into by Protective Life in respect to any preferred or
preference stock of any affiliate of the Company. The obligations of Protective
Life under the Subordinated Debt Securities rank PARI PASSU with the Preferred
Securities Guarantee and are therefor subordinate and junior in right of payment
to all present and future Senior Indebtedness (as defined herein) of Protective
Life. There was approximately $195 million of Senior Indebtedness at March 31,
1997. The Subordinated Debt Securities purchased by the Trust may be
subsequently distributed PRO RATA to holders of the Trust Securities in
connection with the dissolution of the Trust upon the occurrence of certain
events.
The distribution rate and the distribution payment date and other payment
dates for the Preferred Securities will correspond to the interest rate and
interest payment dates and other payment dates on the
S-2
<PAGE>
Subordinated Debt Securities, which will be the sole assets of the Trust. As a
result, if Protective Life does not make principal or interest payments on the
Subordinated Debt Securities, the Trust will not have sufficient funds to make
distributions on the Preferred Securities; in which event, the Preferred
Securities Guarantee will not apply to such distributions until the Trust has
sufficient funds available therefor.
So long as Protective Life is not in default in the payment of interest on
the Subordinated Debt Securities, it has the right to defer payments of interest
on the Subordinated Debt Securities by extending the interest payment period on
the Subordinated Debt Securities up to 20 consecutive quarters (each, an
"Extension Period"), provided that no Extension Period may extend beyond the
Stated Maturity of the Subordinated Debt Securities. If interest payments are so
deferred, distributions on the Preferred Securities will also be deferred.
During such Extension Period, distributions will continue to accrue with
interest thereon (to the extent permitted by applicable law) at an annual rate
of percent per annum compounded quarterly, and during any Extension Period
holders of Preferred Securities will be required to include deferred interest
income in their gross income for United States federal income tax purposes in
advance of receipt of the cash distributions with respect to such deferred
interest payments. There could be multiple Extension Periods of varying lengths
throughout the term of the Subordinated Debt Securities. See "Risk
Factors--Option to Extend Interest Payment Period"; "Description of the
Subordinated Debt Securities--Option to Extend Interest Payment Period"; and
"Certain Federal Income Tax Considerations--Interest Income and Original Issue
Discount."
The Subordinated Debt Securities are redeemable by Protective Life, at any
time in whole or from time to time in part, on or after , , but prior
to the Stated Maturity, or, in whole or in part at any time, upon the occurrence
of a Tax Event (as defined herein). If Protective Life redeems the Subordinated
Debt Securities, the Trust must redeem Trust Securities on a PRO RATA basis
having an aggregate liquidation amount equal to the aggregate principal amount
of the Subordinated Debt Securities so redeemed at $25 per Preferred Security
plus accrued and unpaid distributions thereon (the "Redemption Price") to the
date fixed for redemption. See "Description of the Preferred
Securities--Mandatory Redemption." The Preferred Securities will be redeemed
upon maturity of the Subordinated Debt Securities.
The Company will have the right at any time to dissolve the Trust and cause
the Subordinated Debt Securities to be distributed to the holders of the Trust
Securities. If the Subordinated Debt Securities are distributed to the holders
of the Preferred Securities, the Company will use its best efforts to cause the
Subordinated Debt Securities to be listed on the New York Stock Exchange or on
such other exchange as the Preferred Securities are then listed.
In the event of the involuntary or voluntary dissolution, winding up or
termination of the Trust, the holders of the Preferred Securities will be
entitled to receive for each Preferred Security a liquidation amount of $25 plus
accrued and unpaid distributions thereon (including interest thereon) to the
date of payment, unless, in connection with such dissolution, the Subordinated
Debt Securities are distributed to the holders of the Preferred Securities. See
"Description of the Preferred Securities--Liquidation Distribution upon
Dissolution."
------------------------
FOR NORTH CAROLINA RESIDENTS: 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.
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS
THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE MARKET PRICE OF THE PREFERRED
SECURITIES OFFERED HEREBY. SUCH TRANSACTIONS MAY INCLUDE STABILIZING
TRANSACTIONS, THE PURCHASE OF PREFERRED SECURITIES TO COVER SYNDICATE SHORT
POSITIONS AND THE IMPOSITION OF PENALTY BIDS. FOR A DESCRIPTION OF THESE
ACTIVITIES, SEE "UNDERWRITING."
S-3
<PAGE>
COMPANY OVERVIEW
Protective Life Corporation, a Delaware corporation incorporated in 1981, is
an insurance holding company that, through its subsidiary life insurance
companies, produces, distributes and services a diverse array of insurance and
investment products. Protective Life markets individual life insurance, dental
insurance, group life insurance, credit life and disability insurance,
guaranteed investment contracts and annuities throughout the United States. The
Company also maintains a separate line of business devoted exclusively to the
acquisition of insurance policies from other companies and participates in a
joint venture which owns a life insurance company in Hong Kong. Protective Life
Insurance Company ("Protective Life Insurance"), founded in 1907, is Protective
Life's principal operating subsidiary. Protective Life Insurance is currently
assigned a rating of A+ (Superior) by A.M. Best Company, Inc. (2nd highest
rating of 15), a claims-paying ability rating of AA (Excellent) by Standard &
Poor's (3rd highest rating of 18) and an insurance financial strength rating of
A1 by Moody's Investors Service (5th highest rating of 15). Protective Life's
principal executive offices are located at 2801 Highway 280 South, Birmingham,
Alabama 35223 (telephone: (205) 879-9230).
For the year ended December 31, 1996, Protective Life reported revenues of
approximately $1.0 billion and net income of $89.0 million. At December 31,
1996, Protective Life had total assets of approximately $8.3 billion,
stockholders' equity of $615.3 million and life insurance in force of $69.3
billion.
Over the five-year period ended December 31, 1996, Protective Life's total
assets have grown from $3.1 billion to approximately $8.3 billion, a compound
annual growth rate of 21.5%. In the same five-year period, Protective Life's net
income has grown from $35.8 million to $89.0 million, a compound annual growth
rate of 20.0%, and its return on equity has averaged 17.7%.
RISK FACTORS
PROSPECTIVE PURCHASERS OF PREFERRED SECURITIES SHOULD CAREFULLY REVIEW THE
INFORMATION CONTAINED ELSEWHERE IN OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS SUPPLEMENT AND IN THE ACCOMPANYING PROSPECTUS AND, IN PARTICULAR,
SHOULD CONSIDER THE FOLLOWING MATTERS.
RANKING OF SUBORDINATE OBLIGATIONS UNDER THE PREFERRED SECURITIES GUARANTEE AND
SUBORDINATED DEBT SECURITIES; HOLDING COMPANY STRUCTURE
The Company's obligations under the Preferred Securities Guarantee and
Subordinated Debt Securities rank (i) subordinate and junior in right of payment
to all present and future Senior Indebtedness (as such term is defined in the
Subordinated Indenture), (ii) PARI PASSU with the Common Guarantee, the Series A
Guarantee, the Series A Subordinated Debentures, the 8 1/4% TOPrS Guarantees,
the Series B Subordinated Debentures, obligations to or rights of the Company's
other general unsecured creditors, and any other liabilities or obligations that
may be PARI PASSU by their terms and (iii) senior to the Company's common stock,
the most senior preferred or preference stock now or hereafter issued by the
Company and with any guarantee now or hereafter entered into by Protective Life
in respect to any preferred or preference stock of any affiliate of the Company.
No payment of principal (including redemption payments, if any) or interest on
the Subordinated Debt Securities may be made if (i) any Senior Indebtedness of
Protective Life is not paid when due and any applicable grace period with
respect to such default has ended with such default not having been cured or
waived or ceasing to exist or (ii) the maturity of any Senior Indebtedness has
been accelerated because of a default. As of March 31, 1997, Senior Indebtedness
of Protective Life aggregated approximately $195 million. There are no terms in
the Preferred Securities, the Subordinated Debt Securities or the Preferred
Securities Guarantee that limit the Company's ability to incur additional
indebtedness, including indebtedness that ranks senior to the Subordinated Debt
Securities and the Preferred Securities Guarantee. Protective Life's ability to
pay principal and interest on the Subordinated Debt Securities is affected by
the ability of its insurance
S-4
<PAGE>
company subsidiaries, Protective Life's principal sources of cash flow, to
declare and distribute dividends and to make payments on surplus notes (i.e.,
deeply subordinated intercompany notes owed by insurance company subsidiaries to
Protective Life that are treated as equity capital of such insurance company
subsidiaries 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. In addition, because Protective Life is a holding
company, the Subordinated Debt Securities are effectively subordinated to all
existing and future liabilities of the Company's subsidiaries, including
obligations to policyholders. See "Protective Life Corporation--Holding Company
Structure," "Description of the Preferred Securities Guarantee," "Description of
the Subordinated Debt Securities" and "Description of the Subordinated Debt
Securities--Subordination" and "Description of Debt Securities of Protective
Life" in the accompanying Prospectus.
RIGHTS UNDER THE PREFERRED SECURITIES GUARANTEE
The Preferred Securities Guarantee will be qualified as an indenture under
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"). The
Guarantee Trustee (as defined herein) will act as indenture trustee under the
Preferred Securities Guarantee for the purposes of compliance with the
provisions of the Trust Indenture Act. The Guarantee Trustee will hold the
Preferred Securities Guarantee for the benefit of the holders of the Preferred
Securities.
The Preferred Securities Guarantee guarantees to the holders of the
Preferred Securities the payment of (i) any accrued and unpaid distributions
that are required to be paid on the Preferred Securities, to the extent the
Trust has funds available therefor, (ii) the Redemption Price, with respect to
Preferred Securities called for redemption by the Trust, to the extent the Trust
has funds available therefor, and (iii) upon a voluntary or involuntary
dissolution, winding-up or termination of the Trust (other than in connection
with the distribution of Subordinated Debt Securities to the holders of
Preferred Securities or a redemption of all the Preferred Securities), the
lesser of (a) the aggregate of the liquidation amount and all accrued and unpaid
distributions on the Preferred Securities to the date of the payment to the
extent the Trust has funds available therefor or (b) the amount of assets of the
Trust remaining available for distribution to holders of the Preferred
Securities in liquidation of the Trust. The holders of a majority in liquidation
amount of the Preferred Securities have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Guarantee
Trustee or to direct the exercise of any trust or power conferred upon the
Guarantee Trustee under the Preferred Securities Guarantee. Notwithstanding the
foregoing, any holder of Preferred Securities may institute a legal proceeding
directly against Protective Life to enforce such holder's rights under the
Preferred Securities Guarantee without first instituting a legal proceeding
against the Trust, the Guarantee Trustee or any other person or entity. If
Protective Life were to default on its obligation to pay amounts payable on the
Subordinated Debt Securities or otherwise, the Trust would lack funds for the
payment of distributions or amounts payable on redemption of the Preferred
Securities or otherwise, and, in such event, holders of the Preferred Securities
would not be able to rely upon the Preferred Securities Guarantee for payment of
such amounts. Instead, holders of the Preferred Securities would rely on the
enforcement (1) by the Property Trustee (as defined herein) of its rights as
registered holder of the Subordinated Debt Securities against Protective Life
pursuant to the terms of the Subordinated Indenture and the Subordinated Debt
Securities or (2) by such holder of its own rights against Protective Life to
enforce payments on the Subordinated Debt Securities. See "Description of the
Preferred Securities Guarantee," "Description of the Subordinated Debt
Securities", "--Enforcement of Certain Rights by Holders of Preferred
Securities" and "Protective Life Corporation--Holding Company Structure." The
Declaration provides that each holder of Preferred Securities, by acceptance
thereof, agrees to the provisions of the Preferred Securities Guarantee,
including the subordination provisions thereof, and the Subordinated Indenture.
S-5
<PAGE>
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF PREFERRED SECURITIES
If a Declaration Event of Default (as defined herein) occurs and is
continuing, the holders of Preferred Securities would rely on the enforcement by
the Property Trustee of its rights as registered holder of the Subordinated Debt
Securities against Protective Life. In addition, the holders of a majority in
liquidation amount of the Preferred Securities will have the right to direct the
time, method, and place of conducting any proceeding for any remedy available to
the Property Trustee or to direct the exercise of any trust or power conferred
upon the Property Trustee under the Declaration, including the right to direct
the Property Trustee to exercise the remedies available to it as the holder of
the Subordinated Debt Securities. The Subordinated Indenture provides that the
Debt Trustee (as defined herein) shall give holders of Subordinated Debt
Securities notice of all incurred defaults or events of default within 30 days
after occurrence. However, except in the cases of a default or an event of
default in payment on the Subordinated Debt Securities, the Debt Trustee is
protected in withholding such notice if its officers or directors in good faith
determine that withholding of such notice is in the interest of such holders.
If Protective Life fails to pay interest or principal on the Subordinated
Debt Securities (a "Debt Payment Failure") on the date such interest or
principal is otherwise payable (or in the case of redemption, on the redemption
date), and such Debt Payment Failure is continuing, a holder of Preferred
Securities may directly institute a proceeding for enforcement of payment to
such holder of the principal of or interest on the Subordinated Debt Securities
having a principal amount equal to the aggregate liquidation amount of the
Preferred Securities of such holder (a "Direct Action") after the respective due
date specified in the Subordinated Debt Securities. In connection with such
Direct Action, Protective Life, as holder of the Common Securities, will be
subrogated to the rights of such holder of Preferred Securities under the
Declaration to the extent of any payment made by Protective Life to such holder
of Preferred Securities in such Direct Action. The holders of Preferred
Securities will not be able to exercise directly any other remedy available to
the holders of the Subordinated Debt Securities. See "Description of the
Preferred Securities--Declaration Events of Default and Debt Payment Failures."
LIMITED RIGHTS OF ACCELERATION
The Property Trustee, as holder of the Subordinated Debt Securities, may
accelerate payment of the principal and accrued and unpaid interest on the
Subordinated Debt Securities only upon the occurrence and continuation of a
Declaration Event of Default or Indenture Event of Default (as defined herein),
which generally are limited to certain events of bankruptcy, insolvency and
reorganization of the Company and certain events of dissolution, winding-up or
termination of the Trust. See "Description of the Preferred
Securities--Declaration Events of Default and Debt Payment Failures."
Accordingly, there is no right to acceleration upon default by the Company of
its payment obligations under the Preferred Securities Guarantee.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
Protective Life has the right under the Subordinated Indenture to defer
payments of interest on the Subordinated Debt Securities by extending the
interest payment period at any time, and from time to time, on the Subordinated
Debt Securities. As a consequence of such an extension, quarterly distributions
on the Preferred Securities would be deferred by the Trust during any such
Extension Period (but would continue to accrue, despite such deferral, with
interest thereon compounded quarterly). Such right to extend the interest
payment period for the Subordinated Debt Securities is limited such that an
Extension Period may not exceed 20 consecutive quarters, and may not extend
beyond the Stated Maturity of the Subordinated Debt Securities. During any such
Extension Period, (a) Protective Life shall not declare or pay dividends on, or
make a distribution with respect to, or redeem, purchase or acquire, or make a
liquidation payment with respect to, any of its capital stock (other than (i)
purchases or acquisitions of shares of Protective Life's common stock in
connection with the satisfaction by Protective Life of its obligations under any
employee benefit plans or the satisfaction by the Company of its obligations
pursuant to any contract or
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<PAGE>
security requiring the Company to purchase shares of its common stock, (ii) as a
result of a reclassification of Protective Life capital stock or the exchange or
conversion of one class or series of the Company's capital stock for another
class or series of Protective Life capital stock, (iii) the purchase of
fractional interests in shares of the Company's capital stock pursuant to an
acquisition or the conversion or exchange provisions of such Protective Life
capital stock or the security being converted or exchanged, and (iv) redemptions
or purchases pursuant to Protective Life's Rights Agreement, dated as of August
7, 1995, between Protective Life and AmSouth Bank (as successor by merger to
AmSouth Bank of Alabama, successor by conversion of charter to AmSouth Bank
N.A.) ("AmSouth Bank") as Rights Agent), (b) the Company shall not make any
payment of interest, principal or premium, if any, on or repay, repurchase or
redeem any debt securities (including guarantees) issued by Protective Life that
rank PARI PASSU with or junior to the Subordinated Debt Securities and (c) the
Company shall not make any Guarantee Payments (as defined herein) with respect
to the foregoing (other than pursuant to the Preferred Securities Guarantee, the
Common Guarantee, the 8 1/4% TOPrS Guarantees and the Series A Guarantee. Prior
to the termination of any such Extension Period, Protective Life may further
extend the interest payment period; provided, that such Extension Period may not
exceed 20 consecutive quarters or extend beyond the Stated Maturity of the
Subordinated Debt Securities. Upon the termination of any Extension Period and
the payment of all amounts then due, Protective Life may commence a new
Extension Period, subject to the above requirements. See "Description of the
Preferred Securities--Distributions" and "Description of the Subordinated Debt
Securities--Option to Extend Interest Payment Period."
The Company believes that, for federal income tax purposes, the terms and
conditions of the Subordinated Debt Securities are such that the likelihood that
it will exercise its right to defer payments of interest is a remote
contingency, and that, therefore, the Preferred Securities should not be
considered to be issued with original issue discount ("OID") unless the Company
were actually to exercise such deferral right. There is no assurance that the
Internal Revenue Service will agree with such position. See "Certain Federal
Income Tax Considerations--Interest Income and Original Issue Discount."
Should Protective Life exercise its right to defer payments of interest by
extending the interest payment period, each holder of Preferred Securities will
be required to accrue income (as OID) in respect of its pro rata share of the
deferred stated interest (including any additional interest accruing on such
deferred stated interest) on the Subordinated Debt Securities for United States
federal income tax purposes. As a result, each holder of Preferred Securities
will generally recognize income for United States federal income tax purposes in
advance of the receipt of cash and will not receive the cash from PLC Capital
related to such income if such holder disposes of its Preferred Securities prior
to the record date for the date on which distributions of such amounts are made.
Protective Life has no current intention of exercising its right to defer
payments of interest by extending the interest payment period on the
Subordinated Debt Securities. However, should Protective Life determine to
exercise such right in the future, the market price of the Preferred Securities
is likely to be affected. A holder that disposes of its Preferred Securities
during an Extension Period, therefore, might not receive the same return on its
investment as a holder that continues to hold its Preferred Securities. In
addition, as a result of the existence of the Company's right to defer interest
payments, the market price of the Preferred Securities (which represent an
undivided beneficial interest in the Subordinated Debt Securities) may be more
volatile than other securities on which OID accrues that do not have such
rights. See "Certain Federal Income Tax Considerations--Interest Income and
Original Issue Discount."
PROPOSED TAX LEGISLATION
On February 6, 1997, the Clinton Administration released its budget proposal
for fiscal year 1998. The proposal contains certain tax law changes that, if
enacted, would prohibit an issuer from deducting interest payments or original
issue discount on an instrument that has a maximum weighted average maturity of
more than 40 years. Under the proposal, for purposes of determining the term of
an instrument, any right to extend would be treated as exercised. The
Administration's proposal, if enacted, would also treat a
S-7
<PAGE>
corporate issuer that files annual financial statements with the Commission as
having characterized an instrument as equity for purposes of section 385(c) of
the Internal Revenue Code of 1986, as amended, if the instrument (i) has a
maximum term exceeding 15 years and (ii) is not shown as indebtedness on the
applicable balance sheet of the issuer or, in the case of indebtedness issued to
a related party that issues a related instrument, such related instrument is not
reflected as indebtedness on the applicable consolidated balance sheet. Under
section 385(c), the characterization by the issuer of an instrument as equity is
binding on the issuer and all holders of the instrument unless a holder
discloses on his tax return that he is treating such instrument in a manner
inconsistent with the issuer's characterization. The Administration's proposal
specifies that the changes would be effective for instruments issued on or after
the date of first Congressional committee action.
On June 26, 1997, the House of Representatives passed a bill that includes
certain provisions contained in the Administration's proposal. On June 27, 1997,
the Senate passed a bill that also includes certain provisions contained in the
Administration's proposal. Neither bill includes the provisions of the
Administration's proposal described above. There can be no assurance that
legislation affecting the Company's ability to deduct interest paid on the
Subordinated Debt Securities or the characterization of the Subordinated Debt
Securities for United States federal income tax purposes, including legislation
similar to the proposals described above, will not be enacted in the future or
that any such legislation would not be effective retroactively. In the event tax
law changes are enacted and apply retroactively to the Subordinated Debt
Securities, such changes could give rise to a Tax Event, which would permit the
Company to cause a redemption of the Subordinated Debt Securities and of the
related Preferred Securities and Common Securities, as described more fully
under "Description of the Preferred Securities--Tax Event Redemption."
REDEMPTION OR DISTRIBUTION OF THE SUBORDINATED DEBT SECURITIES
The Company will have the right at any time to dissolve the Trust and cause
the Subordinated Debt Securities to be distributed to the holders of the Trust
Securities. In certain circumstances, the Company shall have the right to redeem
the Subordinated Debt Securities, in whole or in part, in which event the Trust
will redeem the Trust Securities on a PRO RATA basis to the same extent as the
Subordinated Debt Securities are redeemed by the Company. See "Description of
the Preferred Securities--Distribution of the Subordinated Debt Securities."
Under current United States federal income tax law, a distribution of
Subordinated Debt Securities upon the dissolution of PLC Capital would not be a
taxable event to holders of the Preferred Securities. See "Certain Federal
Income Tax Considerations--Distribution of Subordinated Debt Securities to
Holders of Preferred Securities."
There can be no assurance as to the market prices for the Preferred
Securities or the Subordinated Debt Securities that may be distributed in
exchange for Preferred Securities if a dissolution or liquidation of the Trust
were to occur. Accordingly, the Preferred Securities that an investor may
purchase, whether pursuant to the offer made hereby or in the secondary market,
or the Subordinated Debt Securities that a holder of Preferred Securities may
receive on dissolution and liquidation of the Trust, may trade at a discount to
the price that the investor paid to purchase the Preferred Securities offered
hereby. Because holders of Preferred Securities may receive Subordinated Debt
Securities in the event the Company exercises its right to dissolve the Trust,
prospective purchasers of Preferred Securities are also making an investment
decision with regard to the Subordinated Debt Securities and should carefully
review all the information regarding the Subordinated Debt Securities contained
in this Prospectus. See "Description of the Preferred Securities--Distribution
of the Subordinated Debt Securities" and "Description of the Subordinated Debt
Securities."
LIMITED VOTING RIGHTS
Holders of Preferred Securities will have limited voting rights and will not
be entitled to vote to appoint, remove or replace, or to increase or decrease
the number of, PLC Capital Trustees (as hereinafter
S-8
<PAGE>
defined), which voting rights are vested exclusively in the holder of the Common
Securities. See "Description of the Preferred Securities--Voting Rights."
TRADING PRICE
The Preferred Securities may trade at a price that does not fully reflect
the value of accrued but unpaid interest with respect to the underlying
Subordinated Debt Securities. A holder who uses the accrual method of accounting
for tax purposes (and a cash method holder, if the Subordinated Debt Securities
are deemed to be issued with OID) and who disposes of his Preferred Securities
between record dates for payments of distributions thereon will be required to
include accrued but unpaid interest on the Subordinated Debt Securities through
the date of disposition in income as ordinary income (i.e., interest or,
possibly, OID), and to add such amount to his adjusted tax basis in his pro rata
share of the underlying Subordinated Debt Securities deemed disposed of. To the
extent the selling price is less than the holder's adjusted tax basis, a holder
generally will recognize a capital loss. Subject to certain limited exceptions,
capital losses cannot be applied to offset ordinary income for United States
federal income tax purposes. See "Certain Federal Income Tax
Considerations--Interest Income and Original Issue Discount" and "-- Sales or
Redemption of Preferred Securities."
RATINGS
Ratings are an important factor in the competitive position of insurance
companies. Rating organizations periodically review the financial performance
and condition of insurers, including Protective Life's insurance subsidiaries. A
downgrade in the ratings of Protective Life's insurance subsidiaries could
adversely affect its ability to sell its products and its ability to compete for
attractive acquisition opportunities. See "Company Overview."
S-9
<PAGE>
PROTECTIVE LIFE CORPORATION
STRATEGY
The Company's operating strategy has been to identify market opportunities
in the life and health insurance business that offer attractive prospects for
growth and profitability and then to move quickly to take advantage of those
opportunities and become a strong participant in the targeted market segment.
The Company believes that its diverse product mix supports this strategy by
giving the Company broad exposure to attractive market opportunities and a more
diverse base of earnings. The Company also emphasizes discipline in the
allocation of capital, the pricing of products and the management of expenses.
Protective Life is organized around six primary divisions: the Acquisitions
Division, the Guaranteed Investment Contracts Division, the Individual Life
Insurance Division, the Group Division, the Investment Products Division and the
Financial Institutions Division.
Set forth below are the operating earnings (unaudited), realized investment
gains (losses) and related amortization of deferred policy acquisition costs
(unaudited), and income before income tax for each of the Company's Divisions
and a Corporate and Other business segment, and unallocated realized investment
gains (losses) for the three month periods ended March 31, 1997 and 1996 and
each of the years ended December 31, 1996, 1995, 1994, 1993 and 1992.
<TABLE>
<CAPTION>
THREE
MONTHS
ENDED
MARCH 31,(1) YEARS ENDED DECEMBER 31,(1)
-------------------- -----------------------------------------------------
1997 1996 1996 1995 1994 1993 1992
--------- --------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
OPERATING EARNINGS(2)(3)
Acquisitions......................................... $ 14,835 $ 12,959 $ 52,670 $ 48,490 $ 36,796 $ 27,415(4) $18,785
Guaranteed Investment Contacts....................... 6,913 8,708 40,082 31,557 26,005 22,070 12,438
Individual Life Insurance............................ 5,764 2,407 14,027 13,490 13,933 18,005(4) 11,875
Group................................................ 3,718 3,872 5,138 10,060 10,139 8,501 6,723
Investment Products.................................. 3,166 2,160 9,624 6,352 120 (748)(4) 3,217
Financial Institutions............................... 2,917 1,335 9,531 8,375 9,024 7,137 4,907
Corporate and Other(5)............................... 1,966 1,522 7,020 2,663 2,183 (2,390)(4) 2,016
--------- --------- --------- --------- --------- --------- ---------
Total Operating Earnings............................. 39,279 32,963 138,092 120,987 98,200 79,990 59,961
REALIZED INVESTMENT GAINS (LOSSES)
Acquisitions......................................... 0 0 0 0 532 0 0
Guaranteed Investment Contacts....................... (724) (2,380) (7,963) (3,908) 3,000 1,175 962
Individual Life Insurance............................ 0 3,098 3,098 0 0 0 0
Investment Products.................................. 145 3,013 3,858 4,937 (2,500) 2,003 473
Unallocated Realized Investment Gains (Losses)....... 161 690 6,517 583 5,266 1,876 (1,449)
RELATED AMORTIZATION OF DEFERRED POLICY ACQUISITION
COSTS
Individual Life Insurance............................ 0 (1,974) (1,974) 0 0 0 0
Investment Products.................................. (93) (2,270) (1,887) (1,565) 1,675 0 0
--------- --------- --------- --------- --------- --------- ---------
Total Net............................................ (511) 177 1,649 47 7,973 5,054 (14)
INCOME BEFORE INCOME TAX(3)
Acquisitions......................................... 14,835 12,959 52,670 48,490 37,328 27,415(4) 18,785
Guaranteed Investment Contracts...................... 6,189 6,328 32,119 27,649 29,005 23,245 13,400
Individual Life Insurance............................ 5,764 3,531 15,151 13,490 13,933 18,005(4) 11,875
Group................................................ 3,718 3,872 5,138 10,060 10,139 8,501 6,723
Investment Products.................................. 3,218 2,903 11,595 9,724 (705) 1,255(4) 3,690
Financial Institutions............................... 2,917 1,335 9,531 8,375 9,024 7,137 4,907
Corporate and Other(5)............................... 1,966 1,522 7,020 2,663 2,183 (2,390)(4) 2,016
Unallocated Realized Investment Gains (Losses)....... 161 690 6,517 583 5,266 1,876 (1,449)
--------- --------- --------- --------- --------- --------- ---------
Total Income before Income Tax....................... $ 38,768 $ 33,140 $ 139,741 $ 121,034 $ 106,173 $ 85,044 $ 59,947
</TABLE>
- ------------------------
(1) The selected financial data for the periods ended March 31, 1997 and 1996 is
unaudited. The selected financial data for the years ended December 31,
1996, 1995, 1994, 1993 and 1992 have been derived from previously audited
consolidated financial statements of Protective Life.
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<PAGE>
(2) Income before Income Tax excluding realized investment gains and losses and
related amortization of deferred policy acquisition costs.
(3) Certain reclassifications have been made in the previously reported results
relating to the allocation of corporate overhead to make prior period
results comparable to those of the current year. Such reclassifications had
no effect on previously reported net income, total assets or stockholders'
equity.
(4) 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 Acquisitions. Individual Life Insurance, and Investment
Products business segments of approximately $2,600, $3,000 and $2,000,
respectively, while decreasing income of the Corporate and Other segment.
(5) Pre-tax income for the Corporate and Other business segment has not been
reduced by pre-tax minority interest of $1,237 in the periods ended March
31, 1997 and 1996, $4,950 in 1996, $4,950 in 1995, $2,764 in 1994, $19 in
1993 and $90 in 1992. Such minority interest in 1997, 1996, 1995 and 1994
arises from payments made on Monthly Income Preferred Securities issued in
1994.
ACQUISITIONS DIVISION
Protective Life is an active participant in the consolidation of the life
and health insurance industry. The Acquisitions Division focuses solely on
acquiring, converting and servicing business acquired from other companies. The
Company has long been an active acquiror of blocks of insurance policies and the
Division has closed a total of 39 acquisitions over the last 27 years, including
12 since 1989. In 1990, the Company became more focused on the acquisitions
business and, since that year, has invested $475.8 million in acquired blocks of
policies and small insurance companies. The division generally concentrates on
identifying acquisition opportunities in the $10 million to $50 million range, a
market segment that the Company believes to be less competitive than the market
for larger transactions. However, from time to time the Company also considers
larger acquisition opportunities it considers attractive. On June 3, 1997,
Protective Life Insurance acquired all of the outstanding capital stock of West
Coast Life Insurance Company from Nationwide Corporation, a member of the
Nationwide Insurance Enterprise, for approximately $257 million in cash. The
acquisition was financed from funds internally generated at Protective Life
Insurance. Protective Life believes that its highly focused and disciplined
approach to the acquisitions process and its extensive experience in the
assimilation, conservation and servicing of purchased books of business give it
a significant competitive advantage over many other companies that attempt to
make similar acquisitions. The Company expects acquisition opportunities to
continue to be available as the life insurance industry continues to
consolidate. However, management believes that the Company may face increased
competition for future acquisitions. In the five-year period ended December 31,
1996, pretax operating earnings from the Acquisitions Division increased from
$18.8 million to $52.7 million.
GUARANTEED INVESTMENT CONTRACTS DIVISION
Protective Life's Guaranteed Investment Contracts Division markets GICs to
401(k) and other qualified retirement savings plans. The division also offers
guaranteed funding agreements and other annuity contracts. Protective Life
entered the GIC business in 1989. The division's emphasis is on a consistent and
disciplined approach to product pricing and asset/liability management, careful
underwriting of early withdrawal risks and maintaining low distribution and
administration costs. In the five-year period ended December 31, 1996, the
division's operating earnings increased from $12.4 million to $40.1 million.
INDIVIDUAL LIFE INSURANCE DIVISION
The Individual Life Insurance Division markets universal and other life
insurance products on a national basis through a network of independent
insurance agents. The division has grown sales by developing niche marketing
strategies. The strategies include marketing specialty products through
insurance brokerage channels and traditional life insurance products through
regional stock brokers. The division has also developed a unit to distribute
life insurance products on a "private label" basis through other insurance
companies. In the five-year period ended December 31, 1996, the division's sales
(as
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<PAGE>
measured by new annualized premium) have grown from $27.7 million to $45.4
million. Over the same period, the U.S. life insurance industry has experienced
virtually no growth in annualized new premium sales.
GROUP DIVISION
The Group Division's strategic emphasis is on indemnity and managed-care
dental products. At March 31, 1997, the Company had approximately 409,000
members in its dental HMOs and over 939,000 lives covered in total by its dental
programs.
The Group Division was a pioneer in developing indemnity dental products for
the voluntary payroll deduction market. In the first quarter of 1995, Protective
Life entered the dental managed care segment when it acquired a dental managed
care company which transacts business under the trade name "DentiCare". The
acquisition combined DentiCare's high quality service and product capabilities
with the Group Division's marketing strength and capacity to distribute dental
products through a much broader geographic distribution framework. The
division's strategy is to promote a "dual choice" option by offering DentiCare's
products through Protective Life's existing indemnity dental distribution
channels. The division has developed an innovative system for prospecting and
selling dental insurance products by telephone. The division also plans to grow
the dental business through acquisitions. In 1996, the division extended the
geographic reach of its dental managed care operations into Oklahoma, Arkansas
and Missouri and added approximately 38,000 new members through the acquisition
of two dental managed care plans licensed to do business in those states. In
early 1997, the division also acquired a dental health maintenance organization
with approximately 18,000 members in Wisconsin, and another with approximately
14,000 members in Texas. The Company's dental annualized new premium and premium
equivalent sales were $27.0 million in 1995 and $38.4 million in 1996. In 1996
the division's operating earnings were reduced by a one time charge of $6.8
million related to a refund of cancer premiums and related expenses. In the
five-year period ended December 31, 1996, the Group Division's operating
earnings increased from $6.7 million to $11.9 million excluding the one-time
charge described above.
The Group Division also actively markets group life and disability
coverages, typically to employee groups of 25 to 1,000. As part of its strategy
to focus primarily on dental products, the Group Division recently announced its
intention to exit the traditional group major medical business. The decision is
not expected to have a significant effect on the Group Division's operating
results. The division also markets an individual cancer insurance policy.
INVESTMENT PRODUCTS DIVISION
The Investment Products Division markets fixed and variable annuity
products. Annuity products are primarily used by consumers as a source of
retirement savings. Overall industry sales of annuity products have grown in
recent years as the "baby-boom" generation has increased its level of retirement
savings. The Division's annuity products are sold through broker-dealers,
financial institutions and the Individual Life Insurance Division's agent sales
force. In 1994, the Division introduced a variable annuity product which offers
the policyholder the opportunity to invest in mutual funds. The variable annuity
account balance was $624.7 million at December 31, 1996. Variable annuity
products represented 45.9% of the Division's 1996 Sales.
FINANCIAL INSTITUTIONS DIVISION
The Company's Financial Institutions Division specializes in marketing
credit life and disability insurance products through commercial banks, savings
and loan associations, mortgage bankers and automobile dealers. The majority of
these policies cover consumer loans made by financial institutions located
primarily in the southeastern United States and automobile dealers throughout
the United States. The division markets through employee field representatives,
independent brokers and a wholly-owned
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<PAGE>
subsidiary. The division also offers certain products through direct mail
solicitation to customers of financial institutions. The Company believes it has
been a beneficiary of a "flight to quality," as financial institutions and
automobile dealers increasingly prefer to do business with insurers having
quality products, strong balance sheets and high-quality training and service
capabilities.
In 1992, the Company acquired the credit insurance business of Durham Life
Insurance Company, which more than doubled the size of the Financial
Institutions Division. In 1996, the division coinsured a closed block of credit
insurance policies.
In 1995, the division entered into a reinsurance arrangement whereby most of
the division's new credit insurance sales are being ceded to a reinsurer. In the
second quarter of 1995, the division also ceded a block of older policies. In
the five-year period ended December 31, 1996, the division's sales and operating
earnings have increased from $68.4 million and $4.9 million to $146.7 million
and $9.5 million respectively.
CORPORATE AND OTHER
The Corporate and Other segment consists of earnings from the Company's
fifty-percent-owned joint venture in Hong Kong with the Lippo Group, unallocated
net investment income on capital, interest expense on substantially all debt,
charitable contributions, and earnings from several small insurance and
noninsurance subsidiaries. In 1996, its second year of operations, the Hong Kong
joint venture company, Lippo Protective Life Insurance Company, had new premium
sales of $12.7 million, an increase of $6.9 million from its $5.8 million of
annualized new premium sales in 1995.
INVESTMENT PORTFOLIO
Protective Life believes its investment strategy is a key component of its
financial success. The Company targets three primary asset categories:
mortgage-backed securities, corporate bonds and bank loan participations, and a
specialized class of commercial mortgage loans. The types of assets in which the
Company may invest are influenced by state laws which prescribe qualified
investment assets. Within the parameters of these laws, the Company's investment
portfolio is actively managed to support the liabilities of Protective Life's
lines of business, giving consideration to such factors as liquidity needs,
investment quality, investment return, matching of assets and liabilities, and
the composition of the portfolio by asset
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<PAGE>
type and credit exposure. The following table shows the composition of
Protective Life's invested assets at March 31, 1997:
<TABLE>
<CAPTION>
PERCENT OF TOTAL
ASSET VALUE INVESTMENTS
-------------------- -----------------
<S> <C> <C>
(DOLLARS IN
THOUSANDS)
Fixed Maturities:
Bonds:
Mortgage-backed securities......................... $ 2,327,635 35.2%
United States Government and government agencies
and authorities.................................. 133,008 2.0
States, municipalities, and political
subdivisions..................................... 5,388 0.1
Public utilities................................... 336,101 5.1
Convertibles and bonds with warrants attached...... 517 --
All other corporate bonds.......................... 1,818,224 27.4
Bank loan participations............................. 71,121 1.1
Redeemable preferred stocks.......................... 5,861 0.1
----------- -----
Total fixed maturities........................... 4,697,855 71.0
----------- -----
Equity securities:
Common stocks--industrial, miscellaneous, and all
other.............................................. 25,896 0.4
Nonredeemable preferred stocks....................... 11,359 0.2
----------- -----
Total equity securities.......................... 37,255 0.6
Mortgage loans on real estate.......................... 1,579,900 23.9
Investment real estate................................. 11,775 0.2
Policy loans........................................... 166,527 2.5
Other long-term investments............................ 34,132 0.5
Short-term investments................................. 87,328 1.3
----------- -----
Total investments...................................... $ 6,614,772 100.0%
----------- -----
----------- -----
</TABLE>
In its mortgage-backed securities portfolio, Protective Life has focused on
sequential and planned amortization class securities, which tend to be less
volatile than other classes of mortgage-backed securities, and on strict
underwriting and constant monitoring of the portfolio through the use of
state-of-the-art technology. Almost all of the Company's corporate bonds are
investment grade, publicly traded securities. The Company's participation in
senior bank loan programs provides it with enhanced yields and flexibility in
matching maturities in its GIC portfolio.
In its approach to commercial mortgage loans, the Company has, for 26 years,
specialized in originating small loans (average new loan size of $2.9 million)
to finance shopping centers, typically in smaller communities. The Company
provides a high level of service to the developers of such properties and
generally does not attempt to compete for business solely by offering the lowest
interest rates available. Such loans provide attractive yields to the Company
and historically have performed very well. On a cumulative basis, the Company
has had no significant loss of principal on its commercial mortgage loan
portfolio over the last 20 years. As of March 31, 1997, 2.1% of the commercial
loan portfolio was classified as 90 days past due, foreclosed or restructured,
which the Company believes to be well below the life insurance industry average
of 9.6%. The Company believes that its many years of specialization in this
subsegment of the real estate industry helps it to maintain the quality of its
loan underwriting and loan approval process.
S-14
<PAGE>
HOLDING COMPANY STRUCTURE
Protective Life's ability to pay principal and interest on the Subordinated
Debt Securities 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., deeply
subordinated intercompany notes owed by insurance company subsidiaries to
Protective Life that are treated as equity capital of such insurance company
subsidiaries 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. Under Tennessee
insurance laws, Protective Life Insurance generally may pay dividends to
Protective Life only out of its unassigned surplus as reflected in its statutory
financial statements filed in that State. In addition, the Tennessee
Commissioner of Insurance must approve (or not disapprove within 30 days of
notice) payment of an "extraordinary" dividend from Protective Life Insurance,
which generally under Tennessee insurance laws is a dividend that exceeds,
together with all dividends paid by Protective Life Insurance within the
previous 12 months, the greater of (i) 10% of Protective Life Insurance's
surplus as regards policyholders at the preceding December 31 or (ii) the net
gain from operations of Protective Life Insurance for the 12 months ended on
such December 31. 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 insurance regulatory authorities.
In the event of the insolvency, liquidation, reorganization, dissolution or
other winding-up of an insurance 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 Subordinated Debt Securities)
would be entitled to receive any payment from the assets of such subsidiary.
PLC CAPITAL
PLC Capital is a statutory business trust formed under Delaware law pursuant
to (i) a declaration of trust, dated as of July 1, 1997, (the "Declaration")
executed by Protective Life as sponsor (the "Sponsor"), and the trustees of PLC
Capital (the "PLC Capital Trustees") and (ii) a certificate of trust filed with
the Secretary of State of the State of Delaware on July 1, 1997. The Declaration
will be amended and restated in its entirety substantially in the form filed as
an exhibit to the Registration Statement of which this Prospectus Supplement and
the accompanying Prospectus form a part. The Declaration will be qualified as an
indenture under the Trust Indenture Act. Upon issuance of the Preferred
Securities, the purchasers thereof will own all of the Preferred Securities. See
"Description of the Preferred Securities--Book-Entry Only Issuance--The
Depository Trust Company." Protective Life will directly or indirectly acquire
all the Common Securities which will represent an aggregate liquidation amount
equal to at least 3% of the total capital of PLC Capital. PLC Capital exists for
the exclusive purposes of (i) issuing the Trust Securities representing
undivided beneficial interests in the assets of the Trust, (ii) investing the
gross proceeds of the Trust Securities in the Subordinated Debt Securities and
(iii) engaging in only those other activities necessary or incidental thereto.
PLC Capital has a term of approximately 55 years, but may terminate earlier as
provided in the Declaration.
Pursuant to the Declaration, the number of PLC Capital Trustees will
initially be three. Two of the PLC Capital Trustees (the "Regular Trustees")
will be persons who are employees or officers of, or who are affiliated with,
Protective Life. The third trustee will be a financial institution that is
unaffiliated with
S-15
<PAGE>
Protective Life, which trustee will serve as institutional or property trustee
under the Declaration and as indenture trustee for the purposes of compliance
with the provisions of the Trust Indenture Act (the "Property Trustee").
Initially, Wilmington Trust Company, a Delaware banking corporation, will be the
Property Trustee until removed or replaced by the holder of the Common
Securities. For purposes of compliance with the provisions of the Trust
Indenture Act, Wilmington Trust Company will also act as trustee (the "Guarantee
Trustee") under the Preferred Securities Guarantee and as trustee resident in
the State of Delaware (the "Delaware Trustee") for purposes of the Trust Act (as
defined below). See "Description of the Preferred Securities Guarantees" and
"Description of the Preferred Securities-- Voting Rights."
The Property Trustee will hold title to the Subordinated Debt Securities for
the benefit of the holders of the Trust Securities and in such capacity will
have the power to exercise all rights, powers and privileges under the
Subordinated Indenture. In addition, the Property Trustee will maintain
exclusive control of a segregated non-interest-bearing bank account (the
"Property Account") to hold all payments made in respect of the Subordinated
Debt Securities for the benefit of the holders of the Trust Securities. The
Property Trustee will make payments of distributions and payments on
liquidation, redemption and otherwise to the holders of the Trust Securities out
of funds from the Property Account. The Guarantee Trustee will hold the
Preferred Securities Guarantee for the benefit of the holders of the Preferred
Securities. Protective Life, as the direct or indirect holder of all the Common
Securities, will have the right to appoint, remove or replace any PLC Capital
Trustee and to increase or decrease the number of PLC Capital Trustees.
Protective Life, as issuer of the Subordinated Debt Securities, will pay all
fees and expenses related to PLC Capital and the offering of the Trust
Securities. See "Description of the Subordinated Debt
Securities--Miscellaneous."
The rights of the holders of the Preferred Securities, including economic
rights, rights to information and voting rights, are set forth in the
Declaration, the Delaware Business Trust Act (the "Trust Act") and the Trust
Indenture Act. See "Description of the Preferred Securities."
The office of the Delaware Trustee for PLC Capital in the State of Delaware
is Wilmington Trust Company, Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890-0001, Attention: Corporate Trust Administration. PLC
Capital's offices are located at 2801 Highway 280 South, Birmingham, Alabama
35223 (Telephone: (205) 879-9230).
S-16
<PAGE>
SELECTED FINANCIAL INFORMATION OF THE COMPANY
The following selected consolidated financial information as of and for the
years ended December 31, 1996, 1995, 1994, 1993 and 1992 has been derived from
previously published audited consolidated financial statements of Protective
Life, prepared in accordance with generally accepted accounting principles,
which have been examined and reported upon by Coopers & Lybrand L.L.P.,
independent auditors. The selected consolidated financial information at and for
the three month periods ending on March 31, 1997 and March 31, 1996 have been
derived from the first quarter 1997 and 1996 unaudited quarterly consolidated
financial statements of Protective Life. The selected consolidated financial
information should be read in conjunction with, and is qualified in its entirety
by reference to, the consolidated financial statements from which it has been
derived and the accompanying notes thereto incorporated by reference herein.
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31, YEAR ENDED DECEMBER 31,
---------------------- ------------------------------------------------------
1997 1996 1996 1995 1994 1993 1992
---------- ---------- ---------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
INCOME STATEMENT DATA
Premiums and policy fees.... $ 129,578 $ 115,586 $ 494,153 $ 432,576 $ 402,772 $ 370,758 $ 323,136
Net investment income....... 130,330 124,280 517,483 475,924 417,825 362,130 284,069
Realized investment gains
(losses).................. (418) 4,421 5,510 1,612 6,298 5,054 (14)
Other income................ 4,762 5,458 20,857 11,768 21,553 21,695 18,835
---------- ---------- ---------- --------- --------- --------- ---------
Total revenues.......... 264,252 249,745 1,038,003 921,880 848,448 759,637 626,026
---------- ---------- ---------- --------- --------- --------- ---------
Benefits and expenses....... 225,484 216,605 898,262 800,846 742,275 674,593 566,079
Income tax expense.......... 13,181 11,268 47,512 41,152 33,976 28,475 17,384
Minority interest........... 804 804 3,217 3,217 1,796 19 90
Change in accounting
principle................. -- -- -- -- -- -- 1,053
---------- ---------- ---------- --------- --------- --------- ---------
Net income................ $ 24,783 $ 21,068 $ 89,012 $ 76,665 $ 70,401 $ 56,550 $ 41,420
---------- ---------- ---------- --------- --------- --------- ---------
---------- ---------- ---------- --------- --------- --------- ---------
PER SHARE DATA(1)
Net income(2)............... $ 0.80 $ 0.73 $ 2.94 $ 2.68 $ 2.57 $ 2.07 $ 1.52
Cash dividends.............. $ 0.18 $ 0.16 $ .70 $ .62 $ .55 $ .505 $ .45
Weighted average number of
shares outstanding........ 31,161,907(3) 29,020,360(3) 30,285,911(3) 28,627,345(3) 27,392,936(3) 27,381,578(3) 27,315,986
Stockholders' equity........ $ 19.35 $ 17.06 $ 19.98 $ 18.30 $ 9.86 $ 13.17 $ 10.28
Stockholders' equity
excluding net unrealized
gains and losses on
investments............... $ 20.40 $ 16.88 $ 19.76 $ 16.29 $ 13.78 $ 11.74 $ 10.16
<CAPTION>
MARCH 31, DECEMBER 31,
---------------------- ------------------------------------------------------
1997 1996 1996 1995 1994 1993 1992
---------- ---------- ---------- --------- --------- --------- ---------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCE SHEET DATA
Total assets................ $8,317,012 $7,594,796 $8,263,205 $7,231,257 $6,130,284 $5,316,005 $4,006,667
Long-term debt.............. 179,700 118,500 168,200 115,500 98,000 137,598 31,014
Total debt.................. 195,000 128,700 181,000 115,500 98,000 147,118 88,248
Monthly Income Preferred
Securities, Series A(4)... 55,000 55,000 55,000 55,000 55,000
Stockholders' equity........ 595,976 491,327 615,316 526,557 270,373 360,733 281,400
Stockholders' equity
excluding unrealized gains
and losses on
investments............... $ 628,328 $ 486,214 $ 608,628 $ 468,694 $ 377,905 $ 321,449 $ 278,244
CONSOLIDATED STATUTORY
FINANCIAL DATA(5)
Net income.................. $ 22,450 $ 6,735 $ 102,337 $ 115,259 $ 68,945 $ 53,138 $ 32,426
Total capital and surplus... $ 493,073 $ 300,590 $ 456,320 $ 324,416 $ 306,858 $ 265,075 $ 208,476
</TABLE>
- ------------------------
(1) Prior periods have been restated to reflect a two-for-one stock split on
June 1, 1995.
(2) Net income per share is computed using the weighted average number of shares
outstanding during each period.
(3) Excludes contingently issuable shares of 266,856, 229,829, 208,233, 231,253,
262,730, and 257,272 at March 31, 1997 and 1996, and at December 31, 1996,
1995, 1994, and 1993, respectively. The dilutive effect of such shares on
earnings per share is less than three percent.
(4) Historically the Series A Preferred Securities have been reported as
"minority interest in consolidated subsidiaries" in the Company's financial
statements. In the Company's future financial statements, the Series A
Preferred Securities, the Trust I Preferred Securities, and the Preferred
Securities will all be reported under "Guaranteed Preferred Beneficial
Interests in the Company's Debentures."
(5) Of Protective Life's insurance subsidiaries prepared in conformity with
statutory accounting practices prescribed or permitted by insurance
regulatory authorities. Statutory accounting practices differ in some
respects from generally accepted accounting principles. For example, (a)
acquisition costs of obtaining new businesses are expensed as incurred, (b)
benefit liabilities are computed using methods statutorily mandated and are
not adjusted for actual experience, (c) income tax expense is computed on
taxable earnings and (d) furniture and equipment, agents' debt balances and
prepaid expenses are charged directly against surplus rather than reported
as assets.
S-17
<PAGE>
CONSOLIDATED EARNINGS RATIOS
The following table sets forth Protective Life's ratios of consolidated
earnings to fixed charges, consolidated earnings to combined fixed charges and
distributions on Series A Preferred Securities, and consolidated earnings to
combined fixed charges, distributions on Series A Preferred Securities and
interest credited on investment products for the years and periods indicated:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------------------------------------
<S> <C> <C> <C> <C> <C>
1992 1993 1994 1995 1996
--------- --------- --------- --------- ---------
Ratio of Consolidated Earnings to Fixed Charges (1)...................... 13.5 14.4 14.7 13.6 14.9
Ratio of Consolidated Earnings to Combined Fixed Charges and
Distributions on Series A Preferred Securities(2)...................... 13.5 14.4 10.8 9.0 10.0
Ratio of Consolidated Earnings to Combined Fixed Charges, Distributions
on Series A Preferred Securities and Interest Credited on Investment
Products(3)............................................................ 1.3 1.4 1.4 1.4 1.5
<CAPTION>
THREE
MONTHS
ENDED
MARCH 31,
--------------------
<S> <C> <C>
1996 1997
--------- ---------
Ratio of Consolidated Earnings to Fixed Charges (1)...................... 13.2 11.8
Ratio of Consolidated Earnings to Combined Fixed Charges and
Distributions on Series A Preferred Securities(2)...................... 9.1 8.8
Ratio of Consolidated Earnings to Combined Fixed Charges, Distributions
on Series A Preferred Securities and Interest Credited on Investment
Products(3)............................................................ 1.4 1.8
</TABLE>
- ------------------------
(1) The ratio of consolidated earnings to fixed charges is calculated by
dividing the sum of income before income tax (excluding pre-tax minority
interest but not excluding distributions on Series A Preferred Securities
reported as minority interest) and interest expense on debt, by interest
expense on debt.
(2) The ratio of consolidated earnings to combined fixed charges and
distributions on Series A Preferred Securities is calculated by dividing the
sum of income before income tax (excluding pre-tax minority interest but not
excluding distributions on Series A Preferred Securities reported as
minority interest) and interest expense on debt, by interest expense on debt
and distributions on Series A Preferred Securities. The ratio of
consolidated earnings to combined fixed charges and distributions on Series
A Preferred Securities does not include distributions on the Trust I TOPrS
issued in April 1997.
(3) The ratio of consolidated earnings to interest on debt, distributions on
Series A Preferred Securities, and interest credited on investment products
is calculated by dividing the sum of income before income tax (excluding
pre-tax minority interest but not excluding distributions on Series A
Preferred Securities reported as minority interest), interest expense on
debt and interest credited on investment products, by the sum of interest
expense on debt, distributions on Series A Preferred Securities and interest
credited on investment products. Investment products include products such
as guaranteed investment contracts and annuities. The ratio of consolidated
earnings to combined fixed charges, distributions on Series A Preferred
Securities and interest credited on investment products does not include
distributions on the Trust I TOPrS issued in April 1997.
S-18
<PAGE>
CAPITALIZATION OF PROTECTIVE LIFE
The following table sets forth the unaudited summary capitalization of
Protective Life at March 31, 1997 and as adjusted to give effect to (i) the
issuance of the Trust I Preferred Securities and the application of the net
proceeds received by the Company in connection therewith, and (ii) the sale by
PLC Capital of the Preferred Securities and the application of the estimated net
proceeds received by the Company in connection therewith as set forth under "Use
of Proceeds." The table below 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 MARCH 31, 1997
------------------------
<S> <C> <C>
ACTUAL ADJUSTED
---------- ------------
<CAPTION>
(IN THOUSANDS)
<S> <C> <C>
Short-term debt......................................................................... $ 15,300 $ -- (1)
Long-term debt
Notes payable to banks................................................................ 59,700 -- (1)
7.95% Senior Notes due July 1, 2004................................................... 75,000 75,000
Medium-term Notes..................................................................... 45,000 45,000
Total long-term debt.................................................................. 179,700 120,000
Guaranteed Preferred Beneficial Interests in
the Company's Debentures
Cumulative Monthly Income Preferred Securities, Series A Subordinated
Debentures...................................................................... 55,000 55,000
Trust Originated Preferred Securities, Series B Subordinated Debentures........... -- 75,000
Trust Originated Preferred Securities, Series C Subordinated Debentures........... --
Stockholders' equity
Preferred Stock ($1 par value shares authorized: 3,600,000; issued: none)............. -- --
Junior Participating Cumulative Preferred Stock ($1 par value shares authorized:
400,000; issued: none).............................................................. -- --
Common equity ($.50 par value shares authorized: 80,000,000; issued and outstanding:
30,807,526)......................................................................... 595,976 595,976
Total stockholders' equity............................................................ 595,976 595,976
Total capitalization................................................................ $ 845,976 $
</TABLE>
- ------------------------
(1) Total short-term debt and notes payable to banks were approximately $4.0
million and $7.1 million, respectively, as of June 30, 1997.
S-19
<PAGE>
ACCOUNTING TREATMENT
For financial reporting purposes, PLC Capital will be treated as a
subsidiary of Protective Life and, accordingly, the accounts of PLC Capital will
be included in the consolidated financial statements of Protective Life. The
Preferred Securities will be included as a separate line item in the
consolidated balance sheets of the Company under the caption "Guaranteed
Preferred Beneficial Interests in the Company's Debentures" and appropriate
disclosures about the Preferred Securities, the Preferred Securities Guarantee
and the Subordinated Debt Securities will be included in the notes to the
consolidated financial statements. For financial reporting purposes, Protective
Life will record distributions payable on the Preferred Securities as an expense
in the consolidated statements of income.
USE OF PROCEEDS
The Trust will use the gross proceeds received from the sale of the Trust
Securities to purchase Subordinated Debt Securities from Protective Life.
Protective Life intends to use the proceeds from the sale of the Subordinated
Debt Securities for general corporate purposes. Pending such application, such
proceeds will be invested in short-term securities.
S-20
<PAGE>
DESCRIPTION OF THE PREFERRED SECURITIES
The Preferred Securities will be issued pursuant to the terms of the
Declaration. The Declaration will be qualified as an indenture under the Trust
Indenture Act. The Property Trustee, Wilmington Trust Company, will act as
indenture trustee for the Preferred Securities under the Declaration for
purposes of compliance with the provisions of the Trust Indenture Act. The terms
of the Preferred Securities will include those stated in the Declaration and
those made part of the Declaration by the Trust Indenture Act. The following
summary of the material terms and provisions of the Preferred Securities does
not purport to be complete and is subject to, and qualified in its entirety by
reference to, the Declaration, a copy of which is filed as an exhibit to the
Registration Statement of which this Prospectus Supplement is a part, the Trust
Act and the Trust Indenture Act.
GENERAL
The Declaration authorizes the Regular Trustees to issue the Trust
Securities on behalf of the Trust, which represent undivided beneficial
interests in the assets of the Trust. All of the Common Securities will be
owned, directly or indirectly, by Protective Life. The Common Securities rank
PARI PASSU, and payments will be made thereon on a PRO RATA basis, with the
Preferred Securities, except that upon the occurrence and during the continuance
of a Declaration Event of Default, the rights of the holders of the Common
Securities to receive payment of periodic distributions and payments upon
liquidation, redemption and otherwise will be subordinated to the rights of the
holders of the Preferred Securities. The Declaration does not permit the
issuance by the Trust of any securities other than the Trust Securities or the
incurrence of any indebtedness by the Trust. Pursuant to the Declaration, the
Property Trustee will hold the Subordinated Debt Securities purchased by the
Trust for the benefit of the holders of the Trust Securities. The payment of
distributions out of money held by the Trust, and payments upon redemption of
the Preferred Securities or liquidation of the Trust, are guaranteed by
Protective Life to the extent described under "Description of the Preferred
Securities Guarantee" and "Description of the Preferred Securities Guarantees"
in the accompanying Prospectus. The Preferred Securities Guarantee will be held
by Wilmington Trust Company, as the Guarantee Trustee, for the benefit of the
holders of the Preferred Securities. The Preferred Securities Guarantee does not
cover payment of distributions when the Trust does not have sufficient available
funds to pay such distributions. In such event, the remedy of a holder of
Preferred Securities is to vote to direct the Property Trustee to enforce the
Property Trustee's rights under the Subordinated Debt Securities.
Notwithstanding the foregoing, in the circumstances of a Debt Payment Failure, a
holder of Preferred Securities may institute a Direct Action without first
instituting any legal proceeding against the Property Trustee or any other
person or entity. See "--Declaration Events of Default and Debt Payment
Failures" and "--Voting Rights."
DISTRIBUTIONS
Distributions on the Preferred Securities will be fixed at a rate per annum
of percent of the stated liquidation amount of $25 per Preferred Security.
Distributions in arrears for more than one quarter will bear interest thereon at
the rate per annum of percent thereof compounded quarterly. The term
"distribution" as used herein includes any such interest payable unless
otherwise stated. The amount of distributions payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months.
Distributions on the Preferred Securities will be cumulative, will accrue
from , 1997 and, except as otherwise described below, will be payable
quarterly in arrears on March 31, June 30, September 30 and December 31 of each
year, commencing , 1997, when, as and if available for payment.
Protective Life has the right under the Subordinated Indenture to defer
payments of interest on the Subordinated Debt Securities by extending the
interest payment period from time to time on the Subordinated Debt Securities,
which, if exercised, would defer quarterly distributions on the Preferred
S-21
<PAGE>
Securities (though such distributions would continue to accrue interest since
interest would continue to accrue on the Subordinated Debt Securities) during
any such Extension Period. Such right to extend the interest payment period for
the Subordinated Debt Securities is limited to a period not exceeding 20
consecutive quarters and such period may not extend beyond the Stated Maturity
of the Subordinated Debt Securities. In the event that Protective Life exercises
this right, then (a) Protective Life shall not declare or pay dividends on, make
distributions with respect to, or redeem, purchase or acquire, or make a
liquidation payment with respect to, any of its capital stock (other than (i)
purchases or acquisitions of shares of Protective Life's common stock in
connection with the satisfaction by Protective Life of its obligations under any
employee benefit plans or the satisfaction by the Company of its obligation
pursuant to any contract or security requiring it to purchase shares of its
common stock, (ii) as a result of a reclassification of the Company's capital
stock or the exchange or conversion of one class or series of Protective Life
capital stock for another class or series of Protective Life capital stock,
(iii) the purchase of fractional interests in shares of Protective Life capital
stock pursuant to an acquisition or the conversion or exchange provisions of
such Protective Life capital stock or the security being converted or exchanged
and (iv) redemptions or purchases pursuant to Protective Life's Rights
Agreement, dated as of August 7, 1995, between Protective Life and AmSouth Bank
as Rights Agent), (b) the Company shall not make any payment of interest,
principal or premium, if any, on or repay, repurchase or redeem any debt
securities issued by Protective Life that rank PARI PASSU with or junior to such
Subordinated Debt Securities and (c) the Company shall not make any Guarantee
Payments with respect to the foregoing (other than pursuant to the Preferred
Securities Guarantee, the Common Guarantee, the 8 1/4% TOPrS Guarantees and the
Series A Guarantee. Prior to the termination of any such Extension Period,
Protective Life may further extend the interest payment period; PROVIDED, that
such Extension Period may not exceed 20 consecutive quarters or extend beyond
the Stated Maturity of the Subordinated Debt Securities. Upon the termination of
any Extension Period and the payment of all amounts then due, Protective Life
may elect a new Extension Period, subject to the above requirements. See
"Description of the Subordinated Debt Securities--Interest" and "--Option to
Extend Interest Payment Period." If distributions are deferred, upon the
termination of the applicable Extension Period, the deferred distributions and
accrued interest thereon shall be paid to holders as they appeared on the books
and records of the Trust on the record date immediately preceding the
termination of such Extension Period.
Distributions on the Preferred Securities must be paid on the dates payable
to the extent that the Trust has funds available for the payment of such
distributions in the Property Account. The Trust's funds available for
distribution to the holders of the Preferred Securities will be limited to
payments received from Protective Life on the Subordinated Debt Securities. See
"Description of the Subordinated Debt Securities." The payment of distributions
out of moneys held by the Trust is guaranteed by Protective Life to the extent
set forth under "Description of the Preferred Securities Guarantee."
Distributions on the Preferred Securities will be payable to the holders of
record on the relevant record dates, which, as long as the Preferred Securities
remain in book-entry only form, will be one Business Day (as defined below)
prior to the relevant payment dates. Such distributions will be paid through the
Property Trustee who will hold amounts received in respect of the Subordinated
Debt Securities in the Property Account for the benefit of the holders of the
Trust Securities. Subject to any applicable laws and regulations and the
provisions of the Declaration, each such payment will be made as described under
"--Book-Entry Only Issuance--The Depository Trust Company" below. In the event
that the Preferred Securities do not continue to remain in book-entry only form,
the record dates for payment of distributions will be March 15, June 15,
September 15 and December 15. In the event that any date on which distributions
are to be made on the Preferred Securities is not a Business Day, then payment
of the distributions 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 record date. A "Business Day" shall
S-22
<PAGE>
mean any day other than a day on which federal or state banking institutions in
New York, New York or Birmingham, Alabama are authorized or obligated by law,
executive order or regulation to close.
MANDATORY REDEMPTION
The Subordinated Debt Securities will mature on (or such other Stated
Maturity as is applicable, as described under "Description of the Subordinated
Debt Securities--General"). The Subordinated Debt Securities are redeemable, in
whole at any time or in part from time to time, on or after , but prior to
the Stated Maturity, or, in whole or in part at any time upon the occurrence of
a Tax Event. See "--Tax Event Redemption" and "Description of the Subordinated
Debt Securities." Upon the repayment of the Subordinated Debt Securities,
whether at maturity or upon redemption, the proceeds from such repayment or
payment shall simultaneously be applied to redeem Trust Securities having an
aggregate liquidation amount equal to the aggregate principal amount of the
Subordinated Debt Securities so repaid or redeemed at the Redemption Price for
the Preferred Securities equal to the liquidation amount thereof, plus accrued
and unpaid distributions; PROVIDED, that holders of Trust Securities shall be
given not less than 30 nor more than 60 day's notice of such redemption. See
"Description of the Subordinated Debt Securities--Optional Redemption." In the
event that fewer than all of the outstanding Preferred Securities are to be
redeemed, the Preferred Securities will be redeemed PRO RATA as described under
"--Book-Entry Only Issuance--The Depository Trust Company" below.
TAX EVENT REDEMPTION
"Tax Event" means the receipt by Protective Life of an opinion of nationally
recognized independent tax counsel experienced in such matters to the effect
that, as a result of (i) any amendment to, or change (including any announced
prospective change) in, on or after the day before the date of issuance of the
Preferred Securities under the Declaration, the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein or (ii) any interpretation or application of, or
pronouncement with respect to, such laws or regulations by any legislative body,
court, governmental agency or regulatory authority, which amendment or change is
effective or which interpretation, application or pronouncement is announced on
or after the day before the date of issuance of the Preferred Securities under
the Declaration, there is more than an insubstantial increase in the risk (x)
that PLC Capital is, or will be within 90 days of the date thereof, subject to
United States federal income tax with respect to income received or accrued on
the Subordinated Debt Securities and that PLC Capital would be subject to United
States federal income tax if the Subordinated Debt Securities were distributed
to the holders of the Trust Securities in liquidation of such holders' interests
in the Trust pursuant to the exercise by the Company of its right to dissolve
the Trust, (y) that interest payable by the Company on the Subordinated Debt
Securities is not, or within 90 days of the date thereof, will not be,
deductible, in whole or in part, for United States federal income tax purposes,
even if the Subordinated Debt Securities were distributed to the holders of the
Trust Securities in liquidation of such holders' interests in the Trust pursuant
to the exercise by the Company of its right to dissolve the Trust or (z) that
PLC Capital is, or will be within 90 days of the date thereof, subject to more
than a de minimis amount of other taxes, duties or other governmental charges
and that PLC Capital would be subject to more than a de minimis amount of taxes,
duties or other governmental charges if the Subordinated Debt Securities were
distributed to the holders of the Trust Securities in liquidation of such
holders' interests in the Trust pursuant to the exercise by the Company of its
right to dissolve the Trust.
If, at any time, a Tax Event shall occur and be continuing, the Company
shall have the right, upon not less than 30 nor more than 60 days' notice, to
redeem the Subordinated Debt Securities in whole or in part, for cash within 90
days following the occurrence of such Tax Event, and, following such redemption,
Trust Securities with an aggregate liquidation amount equal to the aggregate
principal amount of the Subordinated Debt Securities so redeemed shall be
redeemed by the Trust at the Redemption Price on a PRO RATA basis; PROVIDED,
HOWEVER, that if at the time there is available to the Company or the Trust the
opportunity to
S-23
<PAGE>
eliminate, within such 90 day period, the Tax Event by taking some ministerial
action, such as filing a form or making an election or pursuing some other
similar reasonable measure that has no adverse effect on the Trust, the Company
or the holders of the Trust Securities, the Company or the Trust will pursue
such measure in lieu of redemption.
DISTRIBUTION OF THE SUBORDINATED DEBT SECURITIES
The Company will have the right at any time to dissolve the Trust and cause
the Subordinated Debt Securities to be distributed to the holders of the Trust
Securities. If the Subordinated Debt Securities are distributed to the holders
of the Preferred Securities, the Company will use its best efforts to cause the
Subordinated Debt Securities to be listed on the New York Stock Exchange or on
such other exchange as the Preferred Securities are then listed.
After the date for any distribution of Subordinated Debt Securities upon
dissolution of the Trust, (i) the Preferred Securities will no longer be deemed
to be outstanding, (ii) the Depositary (as defined herein) or its nominee, as
the record holder of the Preferred Securities, will receive a registered global
certificate (as defined herein) or certificates representing the Subordinated
Debt Securities to be delivered upon such distribution, and (iii) any
certificates representing Preferred Securities not held by the Depositary or its
nominee will be deemed to represent Subordinated Debt Securities having an
aggregate principal amount equal to the aggregate stated liquidation amount of,
with an interest rate identical to the distribution rate of, and accrued and
unpaid interest equal to accrued and unpaid distributions on such Preferred
Securities until such certificates are presented to the Company or its agent for
transfer or reissuance.
There can be no assurance as to the market prices for either the Preferred
Securities or the Subordinated Debt Securities that may be distributed in
exchange for the Preferred Securities if a dissolution and liquidation of the
Trust were to occur. Accordingly, the Preferred Securities that an investor may
purchase, whether pursuant to the offer made hereby or in the secondary market,
or the Subordinated Debt Securities that an investor may receive if a
dissolution and liquidation of the Trust were to occur, may trade at a discount
to the price that the investor paid to purchase the Preferred Securities offered
hereby.
REDEMPTION PROCEDURES
The Trust may not redeem fewer than all of the outstanding Preferred
Securities unless all accrued and unpaid distributions have been paid on all
Preferred Securities for all quarterly distribution periods terminating on or
prior to the date of redemption.
If the Trust gives a notice of redemption in respect of Preferred Securities
(which notice will be irrevocable), then, by 12:00 noon, New York City time, on
the redemption date, provided that Protective Life has paid to the Property
Trustee a sufficient amount of cash in connection with the related redemption or
maturity of the Subordinated Debt Securities, the Trust will irrevocably deposit
with the Depositary funds sufficient to pay the applicable Redemption Price and
will give the Depositary (as hereinafter defined) irrevocable instructions and
authority to pay the Redemption Price to the holders of the Preferred
Securities. See "--Book-Entry Only Issuance--The Depository Trust Company." If
notice of redemption shall have been given and funds deposited as required,
then, immediately prior to the close of business on the date of such deposit,
distributions will cease to accrue and all rights of holders of such Preferred
Securities so called for redemption will cease, except the right of the holders
of such Preferred Securities to receive the Redemption Price but without
interest on such Redemption Price. In the event that any date fixed for
redemption of Preferred Securities is not a Business Day, then payment of the
Redemption Price payable on such date will be made on the next succeeding day
that is a Business Day (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
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the Redemption Price in respect of Preferred Securities is improperly withheld
or refused and not paid either by the Trust, or by Protective Life pursuant to
the Preferred Securities Guarantee, distributions on such 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.
In the event that fewer than all of the outstanding Preferred Securities are
to be redeemed, the Preferred Securities will be redeemed PRO RATA as described
below under "--Book-Entry Only Issuance-- The Depository Trust Company."
Subject to the foregoing and applicable law (including, without limitation,
United States federal securities laws), Protective Life or its subsidiaries may
at any time, and from time to time, purchase outstanding Preferred Securities by
tender, in the open market or by private agreement.
LIQUIDATION DISTRIBUTION UPON DISSOLUTION
In the event of any voluntary or involuntary liquidation, dissolution,
winding-up or termination of the Trust (each a "Liquidation"), the then holders
of the Preferred Securities will be entitled to receive out of the assets of the
Trust, after satisfaction of liabilities to creditors, distributions in an
amount equal to the aggregate of the stated liquidation amount of $25 per
Preferred Security plus accrued and unpaid distributions thereon to the date of
payment (the "Liquidation Distribution"), unless, in connection with such
Liquidation, Subordinated Debt Securities in an aggregate stated principal
amount equal to the aggregate stated liquidation amount of, with an interest
rate identical to the distribution rate of, and accrued and unpaid interest
equal to accrued and unpaid distributions on, the Preferred Securities have been
distributed on a PRO RATA basis to the holders of the Preferred Securities.
If, upon any such Liquidation, the Liquidation Distribution can be paid only
in part because the Trust has insufficient assets available to pay in full the
aggregate Liquidation Distribution, then the amounts payable directly by the
Trust on the Preferred Securities shall be paid on a PRO RATA basis. The holders
of the Common Securities will be entitled to receive distributions upon any such
dissolution PRO RATA with the holders of the Preferred Securities, except that
if a Declaration Event of Default has occurred and is continuing, the Preferred
Securities shall have a preference over the Common Securities with regard to
such distributions.
Pursuant to the Declaration, the Trust shall terminate (i) on , the
expiration of the term of the Trust, (ii) upon the bankruptcy of the Company,
(iii) upon the filing of a certificate of dissolution or its equivalent with
respect to the Company or the revocation of the Company's charter and the
expiration of 90 days after the date of revocation without reinstatement
thereof, (iv) the filing of a certificate of cancellation with respect to the
Trust after obtaining the consent of the holders of at least a majority in
liquidation amount of the Trust Securities affected thereby voting together as a
single class to file such certificate of cancellation or the revocation of the
charter of Protective Life and the expiration of 90 days after the date of
revocation without a reinstatement thereof, (v) upon the distribution of
Subordinated Debt Securities to holders of the Preferred Securities and the
redemption of all the Trust Securities, (vi) upon the entry of a decree of a
judicial dissolution of Protective Life or the Trust, or (vii) at the election
of the Company at any time.
DECLARATION EVENTS OF DEFAULT AND DEBT PAYMENT FAILURES
An event of default under the Subordinated Indenture (an "Indenture Event of
Default") constitutes an event of default under the Declaration with respect to
the Trust Securities (a "Declaration Event of Default"); PROVIDED that, pursuant
to the Declaration, the holder of the Common Securities will be deemed to have
waived any Declaration Event of Default with respect to the Common Securities
until all Declaration Events of Default with respect to the Preferred Securities
have been cured, waived or otherwise eliminated. Until such Declaration Events
of Default with respect to the Preferred Securities
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have been so cured, waived, or otherwise eliminated, the Property Trustee will
be deemed to be acting solely on behalf of the holders of the Preferred
Securities and only the holders of the Preferred Securities will have the right
to direct the Property Trustee with respect to certain matters under the
Declaration, and therefore the Subordinated Indenture.
If a Debt Payment Failure (which involves a failure to make a timely
interest, principal or redemption payment but does not constitute a Declaration
Event of Default) has occurred and is continuing, a holder of Preferred
Securities may directly institute a proceeding for enforcement of payment to
such holder directly of the principal of or interest on the Subordinated Debt
Securities having a principal amount equal to the aggregate liquidation amount
of the Preferred Securities of such holder after the respective due date
specified in the Subordinated Debt Securities. In connection with such Direct
Action, Protective Life will be subrogated to the rights of such holder of
Preferred Securities under the Declaration to the extent of any payment made by
Protective Life to such holder of Preferred Securities in such Direct Action.
The holders of Preferred Securities will not be able to exercise directly any
other remedy available to the holders of the Subordinated Debt Securities.
Upon the occurrence of a Declaration Event of Default, the Property Trustee
as the sole holder of the Subordinated Debt Securities will have the right under
the Subordinated Indenture to declare the principal of and interest on the
Subordinated Debt Securities to be immediately due and payable. Protective Life
and the Trust are each required to file annually with the Property Trustee an
officer's certificate as to its compliance with all conditions and covenants
under the Declaration.
VOTING RIGHTS
Except as described herein, under the Trust Act, the Trust Indenture Act and
under "Description of the Preferred Securities Guarantees--Modification of the
Preferred Securities Guarantees; Assignment" in the accompanying Prospectus, and
as otherwise required by law and the Declaration, the holders of the Preferred
Securities will have no voting rights.
Subject to the requirement of the Property Trustee obtaining a tax opinion
in certain circumstances set forth in the last sentence of this paragraph, the
holders of a majority in aggregate liquidation amount of the Preferred
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Property Trustee, or direct the
exercise of any trust or power conferred upon the Property Trustee under the
Declaration including the right to direct the Property Trustee, as holder of the
Subordinated Debt Securities, to (i) exercise the remedies available to it under
the Subordinated Indenture as a holder of the Subordinated Debt Securities, (ii)
waive any past Indenture Event of Default that is waivable under the
Subordinated Indenture, (iii) exercise any right to rescind or annul a
declaration that the principal of all the Subordinated Debt Securities shall be
due and payable or (iv) consent to any amendment, modification or termination of
the Subordinated Indenture or the Subordinated Debt Securities where such
consent shall be required; PROVIDED, HOWEVER, that, where a consent or action
under the Subordinated Indenture would require the consent or act of holders of
more than a majority in principal amount of the Subordinated Debt Securities (a
"Super Majority") affected thereby, only the holders of at least such Super
Majority in aggregate liquidation amount of the Preferred Securities may direct
the Property Trustee to give such consent or take such action. If a Debt Payment
Failure has occurred and is continuing, a holder of Preferred Securities may
directly institute a proceeding for enforcement of payment to such holder of the
principal of or interest on the Subordinated Debt Securities having a principal
amount equal to the aggregate liquidation amount of the Preferred Securities of
such holder after the respective due date specified in the Subordinated Debt
Securities. The Property Trustee shall notify all holders of the Preferred
Securities of any notice of an Event of Default or Debt Payment Failure received
from the Debt Trustee with respect to the Subordinated Debt Securities. Such
notice, in the case of an Event of Default, shall state that such Indenture
Event of Default also constitutes a Declaration Event of Default. Except with
respect to directing the time, method and place of conducting a proceeding for a
remedy, the Property Trustee shall not take any of the actions described in
clauses (i),
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(ii) or (iii) above unless the Property Trustee has obtained an opinion of a
nationally recognized tax counsel experienced in such matters to the effect
that, as a result of such action, the Trust will not fail to be classified as a
grantor trust for United States federal income tax purposes.
In the event the consent of the Property Trustee, as the holder of the
Subordinated Debt Securities, is required under the Subordinated Indenture with
respect to any amendment, modification or termination of the Subordinated
Indenture, the Property Trustee shall request the direction of the holders of
the Trust Securities with respect to such amendment, modification or termination
and shall vote with respect to such amendment, modification or termination as
directed by a majority in liquidation amount of the Trust Securities voting
together as a single class; PROVIDED, HOWEVER, that where a consent under the
Subordinated Indenture would require the consent of a Super Majority, the
Property Trustee may only give such consent at the direction of the holders of
at least the proportion in liquidation amount of the Trust Securities which the
relevant Super Majority represents of the aggregate principal amount of the
Subordinated Debt Securities outstanding and; PROVIDED FURTHER, in the case of a
consent under the Subordinated Indenture which requires the consent of holders
of all the Subordinated Debt Securities outstanding, the Property Trustee may
only give such consent at the direction of the holders of all of the Trust
Securities. The Property Trustee shall not take any such action in accordance
with the directions of the holders of the Trust Securities unless the Property
Trustee has obtained an opinion of a nationally recognized tax counsel
experienced in such matters to the effect that, as a result of such action, the
Trust will not fail to be classified as a grantor trust for United States
federal income tax purposes.
A waiver of an Indenture Event of Default will constitute a waiver of the
corresponding Declaration Event of Default.
Any required approval or direction of holders of Preferred Securities may be
given at a separate meeting of holders of Preferred Securities convened for such
purpose, at a meeting of all of the holders of Trust Securities or pursuant to
written consent. The Regular Trustees will cause a notice of any meeting at
which holders of 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 Preferred Securities. Each such notice will
include a statement setting forth the following information: (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 consents. No vote or consent
of the holders of Preferred Securities will be required for the Trust to redeem
and cancel Preferred Securities or distribute Subordinated Debt Securities in
accordance with the Declaration.
Notwithstanding that holders of Preferred Securities are entitled to vote or
consent under any of the circumstances described above, any of the Preferred
Securities that are owned at such time by Protective Life or any entity directly
or indirectly controlling or controlled by, or under direct or indirect common
control with, Protective Life, shall not be entitled to vote or consent and
shall, for purposes of such vote or consent, be treated as if such Preferred
Securities were not outstanding.
The procedures by which holders of Preferred Securities may exercise their
voting rights are described below. See "--Book-Entry Only Issuance--The
Depository Trust Company."
Holders of the Preferred Securities will have no rights to appoint or remove
the PLC Capital Trustees, who may be appointed, removed or replaced solely by
Protective Life as the indirect or direct holder of all of the Common
Securities.
MODIFICATION OF THE DECLARATION
The Declaration may be modified and amended if approved by the Regular
Trustees (or, if there are more than two Regular Trustees, a majority of the
Regular Trustees) and, in certain circumstances, the Property Trustee or the
Delaware Trustee; PROVIDED that, if any proposed amendment provides for, or the
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Regular Trustees otherwise propose to effect, (i) any action that would
adversely affect the powers, preferences or special rights of the Trust
Securities, whether by way of amendment to the Declaration or otherwise or (ii)
the dissolution, winding-up or termination of the Trust other than pursuant to
the terms of the Declaration, then the holders of the Trust Securities voting
together as a single class will be entitled to vote on such amendment or
proposal and such amendment or proposal shall not be effective except with the
approval of at least a majority in liquidation amount of the Trust Securities
affected thereby; PROVIDED, that, if any amendment or proposal referred to in
clause (i) above would adversely affect only the Preferred Securities or the
Common Securities, then only the affected class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of a majority in liquidation amount of such class of
Securities.
Notwithstanding the foregoing, no amendment or modification may be made to
the Declaration if such amendment or modification would (i) cause the Trust to
be classified for purposes of United States federal income taxation as other
than a grantor trust, (ii) reduce or otherwise adversely affect the powers of
the Property Trustee or (iii) cause the Trust to be deemed an "investment
company" which is required to be registered under the 1940 Act.
MERGERS, CONSOLIDATIONS OR AMALGAMATIONS
The Trust may not consolidate, amalgamate, merge with or into, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety, to any corporation or other body, except as
described below. The Trust may, with the consent of a majority of the Regular
Trustees and without the consent of the holders of the Trust Securities, the
Property Trustee or the Delaware Trustee consolidate, amalgamate, merge with or
into, or be replaced by a trust organized as such under the laws of any State of
the United States; PROVIDED, that (i) if the Trust is not the survivor such
successor entity (the "Successor Entity") either (x) expressly assumes all of
the obligations of the Trust under the Trust Securities or (y) substitutes for
the Trust Securities other securities having substantially the same terms as the
Trust Securities (the "Successor Securities"), so long as the Successor
Securities rank the same as the Trust Securities rank with respect to
distributions and payments upon liquidation, redemption and otherwise, (ii)
Protective Life expressly acknowledges a trustee of such successor entity
possessing the same powers and duties as the Property Trustee as the holder of
the Subordinated Debt Securities, (iii) the Preferred Securities or any
Successor Securities are listed, or any Successor Securities of the Preferred
Securities will be listed upon notification of issuance, on any national
securities exchange or with another organization on which the Preferred
Securities are then listed or quoted, (iv) such merger, consolidation,
amalgamation or replacement does not cause the Preferred Securities (including
any Successor Securities thereof) to be downgraded by any nationally recognized
statistical rating organization, (v) such merger, consolidation, amalgamation or
replacement does not adversely affect the rights, preferences and privileges of
the holders of the Trust Securities (including any Successor Securities) in any
material respect (other than with respect to any dilution of the holders'
interest in the new entity), (vi) such Successor Entity has a purpose identical
to that of the Trust, (vii) prior to such merger, consolidation, amalgamation or
replacement, Protective Life has received an opinion of a nationally recognized
independent counsel to the Trust experienced in such matters to the effect that,
(A) such merger, consolidation, amalgamation or replacement does not adversely
affect the rights, preferences and privileges of the holders of the Trust
Securities (including any Successor Securities) in any material respect (other
than with respect to any dilution of the holders' interest in the new entity),
(B) following such merger, consolidation, amalgamation or replacement, neither
the Trust nor such Successor Entity will be required to register as an
investment company under the 1940 Act and (C) following such merger,
consolidation, amalgamation or replacement, the Trust or the Successor Entity
will continue to be classified as a grantor trust for United States federal
income tax purposes and (viii) Protective Life guarantees the obligations of
such Successor Entity under the Successor Securities at least to the extent
provided by the Preferred Securities Guarantee and the Common Securities
Guarantee. Notwithstanding the foregoing, the Trust shall not, except with the
consent of holders of 100% in liquidation amount of the Trust Securities,
consolidate, amalgamate, merge with or
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into, or be replaced by any other entity or permit any other entity to
consolidate, amalgamate, merge with or into, or replace it, if such
consolidation, amalgamation, merger or replacement would cause the Trust or the
Successor Entity to be classified as other than a grantor trust for United
States federal income tax purposes.
BOOK-ENTRY ONLY ISSUANCE--THE DEPOSITORY TRUST COMPANY
The Depository Trust Company ("DTC") will act as securities depositary (the
"Depositary") for the Preferred Securities. The Preferred Securities will be
issued only as fully-registered securities registered in the name of Cede & Co.
(DTC's nominee). One or more fully-registered global Preferred Securities
certificates (the "Global Certificates"), representing the total aggregate
number of Preferred Securities, will be issued 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 Securities Exchange
Act of 1934, as amended (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 in DTC include securities
brokers and dealers, banks, trust companies, clearing corporations and certain
other organizations. DTC is owned by a number of its Participants and by the New
York Stock Exchange, 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 transactions through or maintain a direct or indirect
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 Securities and Exchange Commission.
Purchases of Preferred Securities within the DTC system must be made by or
through Participants, which will receive a credit for the Preferred Securities
on DTC's records. The ownership interest of each actual purchaser of each
Preferred Security ("Beneficial Owner") is in turn to be recorded on the
Participants' and Indirect Participants' records. Beneficial Owners will not
receive written confirmation from DTC of their purchases, 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 Participants through which the Beneficial Owners purchased Preferred
Securities. Transfers of ownership interests in the 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 the Preferred Securities, except in the event that
use of the book-entry system for the Preferred Securities is discontinued.
DTC has no knowledge of the actual Beneficial Owners of the Preferred
Securities. DTC's records reflect only the identity of the Direct Participants
to whose accounts such Preferred Securities are credited, which may or may not
be the Beneficial Owners. The Participants and Indirect Participants will remain
responsible for keeping account of their holdings on behalf of their customers.
So long as DTC, or its nominee, is the registered owner or holder of a
Global Certificate, DTC or such nominee, as the case may be, will be considered
the sole owner or holder of the Preferred Securities represented thereby for all
purposes under the Declaration and the Preferred Securities. No beneficial owner
of an interest in a Global Certificate will be able to transfer that interest
except in accordance with DTC's applicable procedures, in addition to those
provided for under the Declaration.
DTC has advised the Company that it will take any action permitted to be
taken by a holder of Preferred Securities (including the presentation of
Preferred Securities for exchange as described below)
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only at the direction of one or more Participants to whose account the DTC
interests in the Global Certificates are credited and only in respect of such
portion of the aggregate liquidation amount of Preferred Securities as to which
such Participant or Participants has or have given such direction. However, if
there is an Event of Default under the Preferred Securities, DTC will exchange
the Global Certificates for certificated securities, which it will distribute to
its Participants.
Conveyance of notices and other communications by DTC to Participants, by
Participants to Indirect Participants, and by 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 in respect of the Preferred Securities held in book-entry
form will be sent to Cede & Co. If less than all of the Preferred Securities are
being redeemed, DTC will determine the amount of the interest of each
Participant to be redeemed in accordance with its procedures.
Although voting with respect to the Preferred Securities is limited, in
those cases where a vote is required, neither DTC nor Cede & Co. will itself
consent or vote with respect to Preferred Securities. Under its usual
procedures, DTC would mail an Omnibus Proxy to the Trust as soon as possible
after the record date. The Omnibus Proxy assigns Cede & Co.'s consenting or
voting rights to those Participants to whose accounts the Preferred Securities
are credited on the record date (identified in a listing attached to the Omnibus
Proxy).
Distributions on the Preferred Securities held in book-entry form will be
made to DTC in immediately available funds. DTC's practice is to credit
Participants' accounts on the relevant payment 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 payment date. Payments by Participants and
Indirect Participants to Beneficial Owners will be governed by standing
instructions and customary practices and will be the responsibility of such
Participants and Indirect Participants and not of DTC, the Trust or the Company,
subject to any statutory or regulatory requirements as may be in effect from
time to time. Payment of distributions to DTC is the responsibility of the
Trust, disbursement of such payments to Participants is the responsibility of
DTC, and disbursement of such payments to the Beneficial Owners is the
responsibility of Participants and Indirect Participants.
Except as provided herein, a Beneficial Owner of an interest in a Global
Certificate will not be entitled to receive physical delivery of Preferred
Securities. Accordingly, each Beneficial Owner must rely on the procedures of
DTC to exercise any rights under the Preferred Securities.
Although DTC has agreed to the foregoing procedures in order to facilitate
transfers of interests in the Global Certificates among Participants of DTC, DTC
is under no obligation to perform or continue to perform such procedures, and
such procedures may be discontinued at any time. Neither the Company, the Trust
nor the Trustee will have any responsibility for the performance by DTC or its
Participants or Indirect Participants under the rules and procedures governing
DTC. DTC may discontinue providing its services as securities depositary with
respect to the Preferred Securities at any time by giving notice to the Trust.
Under such circumstances, in the event that a successor securities depositary is
not obtained, Preferred Security certificates are required to be printed and
delivered. Additionally, the Trust (with the consent of the Company) may decide
to discontinue use of the system of book-entry transfers through DTC (or a
successor depositary). In that event, certificates for the Preferred Securities
will be printed and delivered. In each of the above circumstances, the Company
will appoint a paying agent with respect to the Preferred Securities.
The laws of some jurisdictions require that certain purchasers of securities
take physical delivery of securities in definitive form. Such laws may impair
the ability to transfer beneficial interests in the global Preferred Securities
as represented by a Global Certificate.
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PAYMENT AND PAYING AGENCY
Payments in respect of the Preferred Securities represented by the Global
Certificates shall be made to DTC, which shall credit the relevant accounts at
DTC on the applicable distribution dates or, in the case of certificated
securities, such payments shall be made by check mailed to the address of the
holder entitled thereto. The Paying Agent shall initially be the Property
Trustee. The Paying Agent shall be permitted to resign as Paying Agent upon 30
days' written notice to the Regular Trustees. In the event that the Property
Trustee shall no longer be the Paying Agent, the Regular Trustees shall appoint
a successor to act as Paying Agent (which shall be a bank or trust company).
REGISTRAR, TRANSFER AGENT AND PAYING AGENT
The Property Trustee will act as registrar, transfer agent and paying agent
for the Preferred Securities. In the event the Property Trustee shall no longer
be the Paying Agent, the Regular Trustees shall appoint a successor to act as
Paying Agent (which shall be a bank or trust company).
Registration of transfers of Preferred Securities will be effected without
charge by or on behalf of the Trust, but upon payment (with the giving of such
indemnity as the Trust or the Company may require) in respect of any tax or
other government charges which may be imposed in relation to it.
The Trust will not be required to register or cause to be registered the
transfer of Preferred Securities after such Preferred Securities have been
called for redemption.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The Property Trustee, prior to the occurrence of a default with respect to
the Trust Securities and after the curing of any defaults that may have
occurred, undertakes to perform only such duties as are specifically set forth
in the Declaration and, after default, shall exercise the same degree of care as
a prudent individual would exercise in the conduct of his or her own affairs.
Subject to such provisions, the Property Trustee is under no obligation to
exercise any of the powers vested in it by the Declaration at the request of any
holder of Preferred Securities, unless offered reasonable indemnity by such
holder against the costs, expenses and liabilities which might be incurred
thereby. The holders of Preferred Securities will not be required to offer such
indemnity in the event such holders, by exercising their voting rights, direct
the Property Trustee to take any action it is empowered to take under the
Declaration following a Declaration Event of Default. The Property Trustee also
serves as trustee under the Preferred Securities Guarantee.
GOVERNING LAW
The Declaration and the Preferred Securities will be governed by, and
construed in accordance with, the internal laws of the State of Delaware.
MISCELLANEOUS
The Regular Trustees are authorized and directed to operate the Trust in
such a way so that the Trust will not be required to register as an "investment
company" under the 1940 Act or characterized as other than a grantor trust for
United States federal income tax purposes. Protective Life is authorized and
directed to conduct its affairs so that the Subordinated Debt Securities will be
treated as indebtedness of Protective Life for United States federal income tax
purposes. In this connection, Protective Life and the Regular Trustees are
authorized to take any action, not inconsistent with applicable law, the
Declaration, the certificate of trust of the Trust or the certificate of
incorporation of Protective Life, that each of Protective Life and the Regular
Trustees determine in their discretion to be necessary or desirable to achieve
such end, as long as such action does not adversely affect the interests of the
holders of the Preferred Securities or vary the terms thereof.
Holders of the Preferred Securities have no preemptive rights.
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DESCRIPTION OF THE PREFERRED SECURITIES GUARANTEE
Pursuant to the Preferred Securities Guarantee, the Company will, to the
extent PLC Capital shall have funds available therefor, agree to pay in full, to
the holders of the Preferred Securities issued by PLC Capital, the Guarantee
Payments (as defined in the accompanying Prospectus) (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 Company's obligation to
make a Guarantee Payment may be satisfied by direct payment of the required
amounts by the Company to the holders of Preferred Securities or by causing the
Trust to pay such amounts to such holders. The Preferred Securities Guarantee
will be qualified as an indenture under the Trust Indenture Act. Wilmington
Trust Company will act as indenture trustee under the Preferred Securities
Guarantee. The terms of the Preferred Securities Guarantee will be those set
forth in such Preferred Securities Guarantee and those made part of such
Preferred Securities Guarantee by the Trust Indenture Act. The Preferred
Securities Guarantee will be held by the Guarantee Trustee for the benefit of
the holders of the Preferred Securities. Notwithstanding the foregoing, if the
Company has failed to make a payment under the Preferred Securities Guarantee,
any holder of Preferred Securities may institute a legal proceeding directly
against the Company to enforce its rights under the Preferred Securities
Guarantee without first instituting a legal proceeding directly against the
Trust, the Guarantee Trustee or any other person or entity. A summary
description of the Guarantee appears in the accompanying Prospectus under the
caption "Description of the Preferred Securities Guarantees."
DESCRIPTION OF THE SUBORDINATED DEBT SECURITIES
Set forth below is a general description of the terms of the Subordinated
Debt Securities in which the Trust will invest the proceeds from the issuance
and sale of the Trust Securities. This description supplements the description
of the general terms and conditions of the Company's debt securities in the
accompanying Prospectus under the caption "Description of Debt Securities of
Protective Life." The following description does not purport to be complete and
is subject to, and is qualified in its entirety by reference to, the description
in the Subordinated Indenture, dated as of June 1, 1994 (the "Base Indenture"),
between Protective Life and AmSouth Bank (as successor by conversion of charter
to AmSouth Bank N.A.), as Trustee (the "Debt Trustee"), as supplemented by (i)
Supplemental Indenture No. 1, dated as of June 9, 1994, (ii) Supplemental
Indenture No. 2, dated as of August 2, 1994, (iii) Supplemental Indenture No. 3,
dated as of April 29, 1997 and Supplemented Indenture No. 4, to be dated as of
, 1997 (the Base Indenture, as so supplemented, is hereinafter referred to
as the "Subordinated Indenture"), the forms of which are filed as Exhibits to
the Registration Statement of which this Prospectus Supplement and the
accompanying Prospectus forms a part. Certain capitalized terms used herein are
defined in the Subordinated Indenture.
Protective Life will have the right at any time to dissolve the Trust and
cause the Subordinated Debt Securities to be distributed to the holders of the
Trust Securities. If the Subordinated Debt Securities are distributed to the
holders of the Preferred Securities, Protective Life will use its best efforts
to have the Subordinated Debt Securities listed on the New York Stock Exchange
or on such other national securities exchange or similar organization on which
the Preferred Securities are then listed or quoted.
GENERAL
The Subordinated Debt Securities will be issued as unsecured, subordinated
obligations of the Company. The Subordinated Debt Securities will be limited in
aggregate principal amount to approximately $ million, such amount being
the sum of the aggregate stated liquidation amount of the Trust Securities.
The Subordinated Debt Securities are not subject to a sinking fund
provision. The entire principal amount of the Subordinated Debt Securities will
mature and become due and payable, together with any accrued and unpaid interest
thereon, including Compounded Interest (as defined herein) and Additional
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Interest (as defined herein), if any, on the Stated Maturity date (initially
). Such Stated Maturity date may be shortened at any time by the Company
to any date not earlier than . Such Stated Maturity date may also be
extended at any time by the Company to any date not later than ; provided,
that at the time such election is made and at the time of extension (i) the
Company is not in bankruptcy, otherwise insolvent or in liquidation, (ii) the
Company is not in default in the payment of any interest or principal on the
Subordinated Debt Securities, (iii) in the case of Subordinated Debt Securities
held by the Trust, the Trust is not in arrears on payments of Distributions on
the Preferred Securities and no deferred distributions are accumulated and (iv)
the Subordinated Debt Securities are rated not less than BBB- by Standard &
Poor's Rating Services or Baa3 by Moody's Investors Service, Inc. or the
equivalent by any other nationally recognized rating organization; provided,
further, that the Company may at any time irrevocably waive its right to extend
the Stated Maturity date. In the event the Company elects to shorten or extend
the Stated Maturity of the Subordinated Debt Securities or to irrevocably waive
its right to extend the Stated Maturity or Subordinated Debt Securities, it
shall give notice to the Trustee, and the Trustee shall give notice of such
shortening or extension or waiver to the holders of the Subordinated Debt
Securities no more than 90 and no less than 30 days prior to the effectiveness
thereof.
If Subordinated Debt Securities are distributed to holders of Preferred
Securities in liquidation of such holders' interests in the Trust, such
Subordinated Debt Securities will initially be issued as a Global Security (as
defined herein). As described herein, Subordinated Debt Securities also may be
issued in certificated form in exchange for a Global Security. See "--Book-Entry
and Settlement" below. In the event that Subordinated Debt Securities are issued
in certificated form, such Subordinated Debt Securities will be in denominations
of $1,000 and integral multiples thereof and may be transferred or exchanged at
the offices described below. Payments on Subordinated Debt Securities issued as
a Global Security will be made to DTC, a successor depositary or, in the event
that no depositary is used, to a Paying Agent for the Subordinated Debt
Securities. In the event Subordinated Debt Securities are issued in certificated
form, principal and interest will be payable, the transfer of the Subordinated
Debt Securities will be registrable and Subordinated Debt Securities will be
exchangeable for Subordinated Debt Securities of other denominations of a like
aggregate principal amount at the corporate trust office of the Property Trustee
in Wilmington, Delaware; provided, that payment of interest may be made at the
option of Protective Life by check mailed to the address of the holder entitled
thereto or by wire transfer to an account appropriately designated by the holder
entitled thereto. Notwithstanding the foregoing, so long as the holder of any
Subordinated Debt Securities is the Property Trustee, the payment of principal
and interest on the Subordinated Debt Securities held by the Property Trustee
will be made at such place and to such account as may be designated by the
Property Trustee.
The Subordinated Indenture does not contain provisions that afford holders
of the Subordinated Debt Securities protection in the event of a highly
leveraged transaction or other similar transaction involving Protective Life
that may adversely affect such holders.
SUBORDINATION
The Subordinated Indenture provides that the Subordinated Debt Securities
are subordinated and junior in right of payment to all present and future Senior
Indebtedness (as defined herein) of Protective Life. 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 (requesting that payments on Subordinated Debt Securities cease) 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
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Subordinated Debt Securities or interest thereon or in respect of any repayment,
redemption, retirement, purchase or other acquisition of Subordinated Debt
Securities.
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 present and future
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, 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 term "Senior Indebtedness" is defined 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 which is 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.
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The Subordinated Indenture does not limit the aggregate amount of Senior
Indebtedness that may be issued by Protective Life. As of March 31, 1997, Senior
Indebtedness of Protective Life aggregated approximately $195 million. In
addition, because Protective Life is a holding company, the Subordinated Debt
Securities are effectively subordinated to all existing and future liabilities
of the Company's subsidiaries. In addition, the Subordinated Debt Securities and
the Preferred Securities Guarantee will rank PARI PASSU with the Common
Guarantee, the Series A Guarantee, the Series A Subordinated Debentures, the
8 1/4% TOPrS Guarantees and the Series B Subordinated Debentures. See
"Description of the Preferred Securities Guarantees--Status of the Preferred
Securities Guarantees" in the accompanying Prospectus.
CERTAIN COVENANTS OF THE COMPANY
If (i) there shall have occurred any event that would constitute an
Indenture Event of Default or (ii) the Company shall be in default with respect
to its payment of any obligations under the related Preferred Securities
Guarantee or Common Securities Guarantee, or (iii) the Company shall have given
notice to its election to defer payments of interest on such Subordinated Debt
Securities by extending the interest payment period as provided in the
Subordinated Indenture and such period, or any extension thereof, shall be
continuing, then (a) the Company shall not declare or pay any dividend on, make
any distributions with respect to, or redeem, purchase or make a liquidation
payment with respect to, any of its capital stock (other than (i) purchases or
acquisitions of shares of Protective Life's common stock in connection with the
satisfaction by Protective Life of its obligations under any employee benefit
plans or the satisfaction by the Company of its obligation pursuant to any
contract or security requiring the Company to purchase shares of its common
stock, (ii) as a result of a reclassification of Protective Life capital stock
or the exchange or conversion of one class or series of Protective Life capital
stock for another class or series of Protective Life capital stock, (iii) the
purchase of fractional interests in shares of Protective Life capital stock
pursuant to an acquisition or the conversion or exchange provisions of such
Protective Life capital stock or the security being converted or exchanged and
(iv) redemptions or purchases pursuant to Protective Life's Rights Agreement,
dated August 7, 1995, between Protective Life and AmSouth Bank of Alabama as
Rights Agent), (b) the Company shall not make any payments of interest,
principal or premium, if any, on or repay, repurchase or redeem any debt
securities (including guarantees) issued by Protective Life that rank PARI PASSU
with or junior to the Subordinated Debt Securities and (c) the Company shall not
make any Guarantee Payments with respect to the foregoing (other than pursuant
to the Preferred Securities Guarantee, the Common Guarantee, the 8 1/4 % TOPrS
Guarantees and the Series A Guarantee).
The Company will covenant (i) to directly or indirectly maintain 100%
ownership of the Common Securities of PLC Capital; provided, however, that any
permitted successor of the Company under the Subordinated Indenture may succeed
to the Company's ownership of such Common Securities, (ii) not to voluntarily
terminate, wind-up or liquidate the Trust, except (a) in connection with a
distribution of Subordinated Debt Securities to the holders of the Preferred
Securities in liquidation of the Trust, or (b) in connection with certain
mergers, consolidations or amalgamations permitted by the Declaration and (iii)
to use its reasonable best efforts, consistent with the terms and provisions of
the Declaration, to cause the Trust to remain a grantor trust and not to be
classified as an association taxable as a corporation for U.S. federal income
tax purposes.
OPTIONAL REDEMPTION
Protective Life shall have the right to redeem the Subordinated Debt
Securities, at any time in whole or from time to time in part, on or after
, but prior to the Stated Maturity, or, in whole or in part, at any time
if a Tax Event shall have occurred, upon not less than 30 nor more than 60 days
notice, at a redemption price equal to 100% of the principal amount to be
redeemed plus any accrued and unpaid
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interest, including Additional Interest, if any, to the redemption date. See
"Description of the Preferred Securities--Mandatory Redemption" and "--Tax Event
Redemption."
INTEREST
Subordinated Debt Securities shall bear interest at the rate of percent per
annum from payable quarterly in arrears on March 31, June 30, September 30 and
December 31 of each year (each an "Interest Payment Date"), commencing
, to the person in whose name such Subordinated Debt Securities are
registered, subject to certain exceptions, at the close of business on the
Business Day next preceding such Interest Payment Date. In the event the
Subordinated Debt Securities shall not continue to remain in book-entry only
form, the record dates shall be the March 15, June 15, September 15 and December
15 prior to the applicable Interest Payment Date.
The amount of interest payable for any period will be computed on the basis
of a 360-day year of twelve 30-day months. The amount of interest payable for
any period shorter than a full monthly period for which interest is computed,
will be computed on the basis of the actual number of days elapsed in a 90-day
quarter. In the event that any date on which interest is payable on the
Subordinated Debt Securities is not a Business Day, then payment of the interest
payable on such date will be made on the next succeeding day that 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, then
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.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
Protective Life shall have the right at any time, and from time to time,
during the term of the Subordinated Debt Securities to defer payments of
interest by extending the interest payment period to a period not exceeding 20
consecutive quarters, but no such Extension Period may extend beyond the Stated
Maturity. At the end of any such Extension Period, Protective Life shall pay all
interest then accrued and unpaid (including any Additional Interest, as herein
defined) together with interest thereon compounded quarterly at the rate
specified for the Subordinated Debt Securities to the extent permitted by
applicable law ("Compounded Interest"). For a discussion of certain limitations
on Protective Life during any Extension Period see "--Certain Covenants of the
Company" above. Prior to the termination of any such Extension Period,
Protective Life may further defer payments of interest by extending the interest
payment period; provided, however, that, such Extension Period, including all
such previous and further extensions, may not exceed 20 consecutive quarters or
extend beyond the Stated Maturity. Upon the termination of any Extension Period
and the payment of all amounts then due, Protective Life may commence a new
Extension Period, subject to the terms set forth in this section. No interest
shall be due and payable during an Extension Period, except at the end thereof,
but Protective Life may prepay at any time all or any portion of the interest
accrued during an Extension Period. Protective Life has no present intention of
exercising its right to defer payments of interest by extending the interest
payment period on the Subordinated Debt Securities. If the Property Trustee
shall be the sole holder of the Subordinated Debt Securities, Protective Life
shall give the Regular Trustees and the Property Trustee notice of its selection
of such Extension Period one Business Day prior to the earlier of (i) the date
distributions on the Preferred Securities are payable or (ii) the date the
Regular Trustees are required to give notice of the record date or the date such
distribution is payable to the New York Stock Exchange (or other applicable
self-regulatory organization) or to holders of the Preferred Securities, but in
any event at least one Business Day before such record date. The Regular
Trustees shall give notice of the Company's selection of such Extension Period
to the holders of the Preferred Securities. If the Property Trustee shall not be
the sole holder of the Subordinated Debt Securities, Protective Life shall give
the holders of the Subordinated Debt Securities notice of its selection of such
Extension Period at least 10 Business Days prior to the earlier of (i) the
Interest Payment Date or (ii) the date upon which Protective Life is required to
give notice of the record or
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payment date of such interest payment to the New York Stock Exchange (or other
applicable self-regulatory organization) or to holders of the Subordinated Debt
Securities.
ADDITIONAL INTEREST
If at any time the Trust shall be required to pay any taxes, duties,
assessments or governmental charges of whatever nature (other than withholding
taxes) imposed by the United States, or any other domestic taxing authority,
then, in any such case, Protective Life will pay as additional interest
("Additional Interest") such additional amounts as shall be required so that the
net amounts received and retained by the Trust after paying any such taxes,
duties, assessments or other governmental charges will be not less than the
amounts the Trust would have received had no such taxes, duties, assessments or
other governmental charges been imposed.
INDENTURE EVENTS OF DEFAULT AND DEBT PAYMENT FAILURES
If any event of default with respect to the Subordinated Indenture, as
described in the accompanying Prospectus under "Description of Debt Securities
of Protective Life--Events of Default, Notice and Certain Rights on Default" (an
"Indenture Event of Default") shall occur and be continuing, the Property
Trustee, as the holder of the Subordinated Debt Securities, will have the right
to declare the principal of and the interest on the Subordinated Debt Securities
(including any Compounded Interest and Additional Interest, if any) and any
other amounts payable under the Subordinated Indenture to be forthwith due and
payable and to enforce its other rights as a creditor with respect to the
Subordinated Debt Securities. See "Description of Debt Securities of Protective
Life--Events of Default, Notice and Certain Rights on Default" in the
accompanying Prospectus for a description of the Indenture Events of Default. An
Indenture Event of Default also constitutes a Declaration Event of Default. The
holders of Preferred Securities in certain circumstances have the right to
direct the Property Trustee to exercise its rights as the holder of the
Subordinated Debt Securities. See "Description of the Preferred
Securities--Declaration Events of Default and Debt Payment Failures" and
"--Voting Rights." Notwithstanding the foregoing, if a Debt Payment Failure has
occurred and is continuing, a holder of Preferred Securities may institute a
Direct Action for payment after the respective due date specified in the
Subordinated Debt Securities. Notwithstanding any payments made to such holder
of Preferred Securities by Protective Life in connection with a Direct Action,
Protective Life shall remain obligated to pay the principal of or interest on
the Subordinated Debt Securities held by the Trust or the Property Trustee of
the Trust, and Protective Life shall be subrogated to the rights of the holder
of such Preferred Securities with respect to payments on the Preferred
Securities to the extent of any payments made by Protective Life to such holder
in any Direct Action. The holders of Preferred Securities will not be able to
exercise directly any other remedy available to the holders of the Subordinated
Debt Securities.
BOOK-ENTRY AND SETTLEMENT
If distributed to holders of Preferred Securities in connection with the
involuntary or voluntary dissolution, winding-up or liquidation of the Trust as
a result of the election of the Company, the Subordinated Debt Securities will
be issued in the form of one or more global certificates (each a "Global
Security") registered in the name of the Depositary or its nominee. Except under
the limited circumstances described below, Subordinated Debt Securities
represented by the Global Security will not be exchangeable for, and will not
otherwise be issuable as, Subordinated Debt Securities in definitive form. The
Global Securities described above may not be transferred except by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or to a successor Depositary
or its nominee.
The laws of some jurisdictions require that certain purchasers of securities
take physical delivery of such securities in definitive form. Such laws may
impair the ability to transfer beneficial interests in such a Global Security.
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Except as provided below, owners of beneficial interests in such a Global
Security will not be entitled to receive physical delivery of Subordinated Debt
Securities in definitive form and will not be considered the holders (as defined
in the Subordinated Indenture) thereof for any purpose under the Subordinated
Indenture, and no Global Security representing Subordinated Debt Securities
shall be exchangeable, except for another Global Security of like denomination
and tenor to be registered in the name of the Depositary or its nominee or to a
successor Depositary or its nominee. Accordingly, each Beneficial Owner must
rely on the procedures of the Depositary or 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 Subordinated Indenture.
THE DEPOSITARY
If Subordinated Debt Securities are distributed to holders of Preferred
Securities in liquidation of such holders' interests in the Trust, DTC will act
as securities depositary for the Subordinated Debt Securities. For a description
of DTC and the specific terms of the depositary arrangements, see "Description
of the Preferred Securities--Book-Entry Only Issuance--The Depository Trust
Company." As of the date of this Prospectus, the description therein of DTC's
book-entry system and DTC's practices as they relate to purchases, transfers,
notices and payments with respect to the Preferred Securities apply in all
material respects to any debt obligations represented by one or more Global
Securities held by Protective Life. Protective Life may appoint a successor to
DTC or any successor depositary in the event DTC or such successor depositary is
unable or unwilling to continue as a depositary for the Global Securities.
None of Protective Life, the Trust, the Property Trustee, any paying agent
and any other agent of Protective Life, or the Debt Trustee will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in a Global Security
for such Subordinated Debt Securities or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
DISCONTINUANCE OF THE DEPOSITARY'S SERVICES
A Global Security shall be exchangeable for Subordinated Debt Securities
registered in the names of persons other than the Depositary or its nominee only
if (i) the Depositary notifies Protective Life that it is unwilling or unable to
continue as a depositary for such Global Security and no successor depositary
shall have been appointed, (ii) the Depositary, at any time, ceases to be a
clearing agency registered under the Exchange Act at which time the Depositary
is required to be so registered to act as such depositary and no successor
depositary shall have been appointed, (iii) Protective Life, in its sole
discretion, determines that such Global Security shall be so exchangeable or
(iv) there shall have occurred an Event of Default with respect to such
Subordinated Debt Securities. Any Global Security that is exchangeable pursuant
to the preceding sentence shall be exchangeable for Subordinated Debt Securities
registered in such names as the Depositary shall direct. It is expected that
such instructions will be based upon directions received by the Depositary from
its Participants with respect to ownership of beneficial interests in such
Global Security.
NOTICES
Notices to holders of registered Subordinated Debt Securities will be given
by mail to the addresses of such holders as they may appear in the Register.
TITLE
Protective Life, the Debt Trustee and any agent of Protective Life or the
Debt Trustee may treat the Person in whose name a Subordinated Debt Security is
registered as the absolute owner thereof (whether or not such Subordinated Debt
Security may be overdue) for the purpose of receiving payment and for all other
purposes.
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GOVERNING LAW
The Subordinated Indenture and the Subordinated Debt Securities will be
governed by, and construed in accordance with, the internal laws of the State of
New York.
MISCELLANEOUS
The Subordinated Indenture provides that Protective Life will pay all fees
and expenses related to (i) the offering of the Trust Securities and the
Subordinated Debt Securities, (ii) the organization, maintenance and dissolution
of the Trust, (iii) the retention of the PLC Trustees and (iv) the enforcement
by the Property Trustee of the rights of the holders of the Preferred
Securities. The payment of such fees and expenses will be fully and
unconditionally guaranteed by Protective Life.
Protective Life will have the right at all times to assign any of its
respective rights or obligations under the Subordinated Indenture to a direct or
indirect wholly-owned subsidiary of Protective Life; PROVIDED that, in the event
of any such assignment, Protective Life will remain liable for all of their
respective obligations. Subject to the foregoing, the Subordinated Indenture
will be binding upon and inure to the benefit of the parties thereto and their
respective successors and assigns. The Subordinated Indenture provides that it
may not otherwise be assigned by the parties thereto.
So long as PLC Capital is the holder of the Subordinated Debt Securities,
the Subordinated Debt Securities may be amended by mutual consent of Protective
Life and the Trust in the manner they shall agree; provided, however, that, so
long as any of the Preferred Securities remain outstanding, no such amendment
shall be made that adversely affects the holders of the Preferred Securities, no
termination of the Subordinated Debt Securities shall occur, and no Event of
Default or compliance with any covenant under the Subordinated Debt Securities
may be waived by PLC Capital, without the prior approval of the holders of at
least 66 2/3% in liquidation preference of all Preferred Securities then
outstanding, in writing or at a duly constituted meeting of such holders.
If the Trust is liquidated and the Subordinated Debt Securities are
distributed to the holders of the Trust Securities, the Indenture and the terms
of the Subordinated Debt Securities may, thereafter, be modified or amended with
the consent of not less than 66 2/3% in principal amount of the Subordinated
Debt Securities at any time outstanding, provided, however, that no such
modification or amendment may, without the consent of the holder of each
Subordinated Debt Security affected thereby, (a) extend the stated maturity of
the principal of any Subordinated Debt Security (other than as described under
"Description of the Subordinated Debt Securities--General"), or reduce the
principal amount thereof or reduce the rate or extend the time of payment of
interest thereon (other than as described under "Description of the Subordinated
Debt Securities--Option to Extend Interest Payment Period"), 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 Subordinated Debt
Security when due or (b) reduce the aforesaid principal amount of the
Subordinated Debt Securities, the consent of the holders of which is required
for any such modification.
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EFFECT OF OBLIGATIONS UNDER THE SUBORDINATED DEBT SECURITIES
AND THE PREFERRED SECURITIES GUARANTEE
As set forth in the Declaration, the sole purposes of the Trust are to issue
the Trust Securities evidencing undivided beneficial interests in the assets of
the Trust, to invest the proceeds from such issuance and sale in the
Subordinated Debt Securities and to engage in those other activities necessary
or incidental thereto.
As long as payments of interest and other payments are made when due on the
Subordinated Debt Securities, such payments will be sufficient to cover
distributions and payments due on the Trust Securities because of the following
factors: (i) the aggregate principal amount of Subordinated Debt Securities will
be equal to the sum of the aggregate stated liquidation amount of the Trust
Securities; (ii) the interest rate and the interest and other payment dates on
the Subordinated Debt Securities will match the distribution rate and
distribution and other payment dates for the Preferred Securities; (iii)
Protective Life shall pay all, and the Trust shall not be obligated to pay,
directly or indirectly, all costs, expenses, debt, and obligations of the Trust
(other than with respect to the Trust Securities); and (iv) the Declaration
further provides that the Regular Trustees shall not take or cause or permit the
Trust to, among other things, engage in any activity that is not consistent with
the purposes of the Trust.
Payments of distributions (to the extent the Trust has funds available
therefor) and other payments due on the Preferred Securities (to the extent the
Trust has funds available therefor) are guaranteed on a subordinated basis by
Protective Life as and to the extent set forth under "Description of the
Preferred Securities Guarantee" in the accompanying Prospectus. If Protective
Life does not make interest payments on the Subordinated Debt Securities
purchased by the Trust, the Trust will not have sufficient funds to pay
distributions on the Preferred Securities. The Preferred Securities Guarantee
does not apply to any payment of distributions unless and until the Trust has
sufficient funds for the payment of such distributions. The Preferred Securities
Guarantee covers the payment of distributions and other payments on the
Preferred Securities only if and to the extent that Protective Life has made a
payment of interest or principal on the Subordinated Debt Securities held by the
Trust as its sole asset. The Preferred Securities Guarantee, when taken together
with the Company's obligations under the Subordinated Debt Securities and the
Subordinated Indenture and its obligations under the Declaration, including its
obligations to pay costs, expenses, debts and liabilities of the Trust (other
than with respect to the Trust Securities), provide a full and unconditional
guarantee on a subordinated basis of amounts due on the Preferred Securities.
If Protective Life fails to make interest or other payments on the
Subordinated Debt Securities when due (taking account of any Extension Period),
the Declaration provides a mechanism whereby the holders of the Preferred
Securities, using the procedures described in "Description of the Preferred
Securities-- Book-Entry Only Issuance--The Depository Trust Company" and
"--Voting Rights," may direct the Property Trustee to enforce its rights under
the Subordinated Debt Securities. If a Debt Payment Failure has occurred and is
continuing, a holder of Preferred Securities may then institute a Direct Action
for payment after the respective due date specified in the Subordinated Debt
Securities. In connection with such Direct Action, Protective Life will be
subrogated to the rights of such holder of Preferred Securities under the
Declaration to the extent of any payment made by Protective Life to such holder
of Preferred Securities in such Direct Action. Protective Life, under the
Preferred Securities Guarantee, acknowledges that the Guarantee Trustee shall
enforce the Preferred Securities Guarantee on behalf of the holders of the
Preferred Securities. If Protective Life fails to make payments under the
Preferred Securities Guarantee, the Preferred Securities Guarantee provides a
mechanism whereby the holders of the Preferred Securities may direct the
Guarantee Trustee to enforce its rights thereunder. Any holder of Preferred
Securities may institute a legal proceeding directly against Protective Life to
enforce the Guarantee Trustee's rights under the Preferred Securities Guarantee
without first instituting a legal proceeding against the Trust, the Guarantee
Trustee, or any other person or entity.
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<PAGE>
Protective Life and the Trust believe that the above mechanisms and
obligations, taken together, provide a full and unconditional guarantee by
Protective Life on a subordinated basis of payments due on the Preferred
Securities. See "Description of the Preferred Securities Guarantee--General."
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of the material United States federal income tax
considerations relevant to the purchase, ownership and disposition of Preferred
Securities by a beneficial owner acquiring Preferred Securities on their
original issue at their original offering price who is (i) an individual citizen
or resident of the United States, (ii) a corporation or partnership organized in
or under the laws of the United States or any state thereof or the District of
Columbia or (iii) an estate the income of which is subject to United States
federal income taxation regardless of its source or (iv) a trust if a court
within the United States is able to exercise primary supervision over the
administration of such trust and one or more United Status fiduciaries have the
authority to control all the substantial decisions of such trust (a "United
States Person"). The statements of law or legal conclusion set forth in this
summary constitute the opinion of Debevoise & Plimpton, special counsel to
Protective Life and PLC Capital. This summary does not address potential tax
considerations applicable to a prospective purchaser that is not a United States
Person. Prospective investors in the 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 Preferred Security, and is not
intended to be wholly applicable to all categories of investors (including, for
example, banks, insurance companies, tax-exempt organizations and dealers in
securities or currencies), or to persons that will hold Preferred Securities as
a part of a position in a "straddle" or as part of a "hedging" or "conversion"
transaction for Federal income tax purposes or whose functional currency is not
the United States dollar. This summary is based upon the 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 the
tax consequences to vary substantially from the consequences described below,
possibly adversely affecting a beneficial owner of a Preferred Security. These
authorities are subject to various interpretations and it is therefore possible
that the Federal income tax treatment of the Preferred Securities may differ
from the treatment described below. Legislation has been proposed that could, if
enacted, adversely affect Protective Life's ability to deduct interest on the
Subordinated Debt Securities, which may in turn result in a redemption of
Preferred Securities. See "--Proposed Tax Law Changes."
PROSPECTIVE INVESTORS ARE ADVISED TO CONSULT WITH THEIR OWN TAX ADVISORS IN
LIGHT OF THEIR OWN PARTICULAR CIRCUMSTANCES AS TO THE FEDERAL TAX CONSEQUENCES
OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF PREFERRED SECURITIES, AS WELL AS
THE EFFECT OF ANY STATE, LOCAL OR FOREIGN TAX LAWS.
CLASSIFICATION OF PLC CAPITAL
In connection with the issuance of the Preferred Securities, Debevoise &
Plimpton will render its opinion to the effect that, under current law and
assuming compliance with the terms of the Declaration, the Trust will be
classified as a grantor trust and not as an association taxable as a corporation
for Federal income tax purposes. Each beneficial owner of a Preferred Security
(a "Securityholder") will be treated as owning an undivided beneficial interest
in the Subordinated Debt Securities. Accordingly, each Securityholder will be
required to include in its gross income its share of the income with respect to
the Subordinated Debt Securities. Any amount included in a Securityholder's
gross income will increase such Securityholder's tax basis in its Preferred
Securities, and the amount of distributions to a Securityholder will reduce such
Securityholder's tax basis in its Preferred Securities. No amount included in
income with respect to the Preferred Securities will be eligible for the
dividends received deduction.
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<PAGE>
INTEREST INCOME AND ORIGINAL ISSUE DISCOUNT
Under the Subordinated Indenture, Protective Life has the option to defer
from time to time the payment of interest on the Subordinated Debt Securities.
Protective Life's option to extend the interest payment period could cause the
Subordinated Debt Securities to be subject to the "original issue discount"
rules for Federal income tax purposes. Protective Life, however, believes, and
intends to take the position that, as of the issue date, the terms and
conditions of the Subordinated Debt Securities (in particular the restrictions
on Protective Life's ability to pay dividends during an Extension Period) make
the likelihood that Protective Life would elect to defer the payment of interest
a "remote" contingency for these purposes. If so treated, the Subordinated Debt
Securities would not be subject to the original issue discount rules unless
Protective Life were to extend the interest payment period, and a Securityholder
would generally include stated interest in income as ordinary income when paid
to the Trust or accrued, in accordance with such holder's regular method of
accounting.
If Protective Life were to exercise its option to defer payments of
interest, the Subordinated Debt Securities would at that time be treated as
issued with OID, and all stated interest on the Subordinated Debt Securities
would thereafter be treated as OID as long as the Subordinated Debt Securities
remain outstanding. In such event, all of a holder's taxable interest income
with respect to the Subordinated Debt Securities would thereafter be accounted
for on an economic accrual basis regardless of such holder's method of tax
accounting, and actual distributions of stated interest would not be reported as
taxable income. Consequently, a holder of Preferred Securities would be required
to include OID in its gross income daily even though Protective Life would not
make actual cash payments during an Extension Period.
The IRS could take a position that the likelihood of deferral is not a
remote contingency for these purposes, in which case the Subordinated Debt
Securities would be subject to the OID rules described in the preceding
paragraph.
Because income on the Preferred Securities will constitute interest or OID,
corporate holders of Preferred Securities will not be entitled to a
dividends-received deduction with respect to any income recognized with respect
to the Preferred Securities.
DISTRIBUTION OF SUBORDINATED DEBT SECURITIES TO HOLDERS OF PREFERRED SECURITIES
Under current law, a distribution by the Trust of the Subordinated Debt
Securities as described under the caption "Description of the Preferred
Securities--Distribution of the Subordinated Debt Securities" will be
non-taxable and will result in the Securityholder receiving directly his pro
rata share of the Subordinated Debt Securities previously held indirectly
through the Trust, with a holding period and tax basis equal to the holding
period and tax basis such Securityholder had in his Preferred Securities before
such distribution. A Securityholder will continue to include interest (or OID)
in respect of Subordinated Debt Securities received from the Trust in the manner
described above under "--Interest Income and Original Issue Discount."
SALES OR REDEMPTION OF PREFERRED SECURITIES
Gain or loss will be recognized by a Securityholder on a sale of Preferred
Securities (including a redemption for cash) in an amount equal to the
difference between the amount realized and the Securityholder's adjusted tax
basis in the Preferred Securities sold or so redeemed. Gain or loss recognized
by a Securityholder on Preferred Securities held for more than one year will
generally be taxable as long-term capital gain or loss (except to the extent
attributable to accrued interest, which will be taxable as ordinary income).
The Preferred Securities may trade at a price that does not fully reflect
the value of accrued but unpaid interest with respect to the underlying
Subordinated Debt Securities. A Securityholder who uses
S-42
<PAGE>
the accrual method of accounting for tax purposes (and a cash method holder if
the Subordinated Debt Securities are deemed to be subject to the original issue
discount rules) who disposes of its Preferred Securities between record dates
for payments of Distributions will nevertheless be required to include accrued
but unpaid interest of the Subordinated Debt Securities through the date of
disposition in income as ordinary income and to add such amount to its adjusted
basis in its Preferred Securities disposed of. Such Securityholder will
generally recognize a capital loss to the extent the selling price (which may
not fully reflect the value of accrued but unpaid interest) is less than the
Securityholder's adjusted tax basis (which will include accrued but unpaid
interest). Subject to certain limited exceptions, capital losses cannot be
applied to offset ordinary income for Federal income tax purposes.
BACKUP WITHHOLDING TAX AND INFORMATION REPORTING
In general, information reporting requirements on Form 1099 will apply to
payments on a Preferred Security to a noncorporate United States Person, and
"backup withholding" at a rate of 31% will apply to such payments if such United
States Person fails to provide an accurate taxpayer identification number or
certain other conditions are met.
Payment of the proceeds from the sale of Preferred Securities to or through
the United States office of a broker is subject to information reporting and
backup withholding unless the holder or beneficial owner certifies as to its
non-United States status or otherwise establishes an exemption from information
reporting and backup withholding.
PROPOSED TAX LAW CHANGES
On February 6, 1997, the Clinton Administration released its budget proposal
for fiscal year 1998. The proposal contains certain tax law changes that, if
enacted, would prohibit an issuer from deducting interest payments or original
issue discount on an instrument that has a maximum weighted average maturity of
more than 40 years. Under the proposal, for purposes of determining the term of
an instrument, any right to extend would be treated as exercised. The
Administration's proposal, if enacted, would also treat a corporate issuer that
files annual financial statements with the Commission as having characterized an
instrument as equity for purposes of section 385(c) of the Internal Revenue Code
of 1986, as amended, if the instrument (i) has a maximum term exceeding 15 years
and (ii) is not shown as indebtedness on the applicable balance sheet of the
issuer or, in the case of indebtedness issued to a related party that issues a
related instrument, such related instrument is not reflected as indebtedness on
the applicable consolidated balance sheet. Under section 385(c), the
characterization by the issuer of an instrument as equity is binding on the
issuer and all holders of the instrument unless a holder discloses on his tax
return that he is treating such instrument in a manner inconsistent with the
issuer's characterization. The Administration's proposal specifies that the
changes would be effective for instruments issued on or after the date of first
Congressional committee action.
On June 26, 1997, the House of Representatives passed a bill that includes
certain provisions contained in the Administration's proposal. On June 27, 1997,
the Senate passed a bill that also includes certain provisions contained in the
Administration's proposal. Neither bill includes the provisions of the
Administration's proposal described above. There can be no assurance that
legislation affecting the Company's ability to deduct interest paid on the
Subordinated Debt Securities or the characterization of the Subordinated Debt
Securities for U.S. federal income tax purposes, including legislation similar
to the proposals described above, will not be enacted in the future or that any
such legislation would not be effective retroactively. In the event tax law
changes are enacted and apply retroactively to the Subordinated Debt Securities,
such changes could give rise to a Tax Event, which would permit the Company to
cause a redemption of the Subordinated Debt Securities and of the related
Preferred Securities and Common Securities, as described more fully under
"Description of the Preferred Securities--Tax Event Redemption."
S-43
<PAGE>
UNDERWRITING
Subject to the terms and conditions set forth in a purchase agreement (the
"Purchase Agreement"), PLC Capital has agreed to sell to each of the
Underwriters named below, and each of the Underwriters, for whom Merrill Lynch,
Pierce, Fenner & Smith Incorporated, and are acting as representatives
(the "Representatives"), has severally agreed to purchase the number of
Preferred Securities set forth opposite its name below. In the Purchase
Agreement, the several Underwriters have agreed, subject to the terms and
conditions set forth therein, to purchase all the Preferred Securities offered
hereby if any of the Preferred Securities are purchased. In the event of default
by an Underwriter, the Purchase Agreement provides that, in certain
circumstances, purchase commitments of the nondefaulting Underwriters may be
increased or the Purchase Agreement may be terminated.
<TABLE>
<CAPTION>
NUMBER OF
PREFERRED
UNDERWRITERS SECURITIES
- ---------------------------------------------------------------------------------- -----------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated....................................................................
-----------
Total.............................................................................
-----------
-----------
</TABLE>
The Representatives have advised the Trust that the Underwriters propose to
offer the Preferred Securities in part to the public at the initial public
offering price set forth on the cover page of this Prospectus Supplement, and in
part to certain securities dealers at such price less a concession not in excess
of $ per Preferred Security. The Underwriters may allow, and such
dealers may reallow, a discount not in excess of $ per Preferred
Security to certain other brokers and dealers. After the initial public
offering, the public offering price, concession and discount may be changed.
In view of the fact that the proceeds of the sale of the Preferred
Securities will ultimately be used to purchase the Subordinated Debt Securities
of Protective Life, the Purchase Agreement provides that Protective Life will
pay as compensation ("Underwriters' Compensation") to the Underwriters for the
Underwriters' arranging the investment therein of such proceeds, an amount in
immediately available funds of $ per Preferred Security (or $ in
the aggregate) for the accounts of the several Underwriters; provided that, such
compensation for sales of 10,000 or more Preferred Securities to any single
purchaser will be $ per Preferred Security. Therefore, to the extent of
such sales, the actual amount of Underwriters' Compensation will be less than
the aggregate amount specified in the preceding sentence.
Until , neither PLC Capital nor Protective Life will, without the
prior written consent of Merrill Lynch, Pierce, Fenner & Smith Incorporated,
directly or indirectly, sell, offer to sell, grant any option for sale of, or
otherwise dispose of, or enter into any agreement to sell any Preferred
Securities, any security convertible into or exchangeable into or exercisable
for Preferred Securities or Subordinated Debt Securities or any debt securities
substantially similar to the Subordinated Debt Securities or equity securities
substantially similar to the Preferred Securities.
The Preferred Securities have been approved for listing on the New York
Stock Exchange, subject to notice of issuance. Trading of the Preferred
Securities on the New York Stock Exchange is expected to commence within a
30-day period after the initial delivery of the Preferred Securities. The
Representatives have advised PLC Capital that they intend to make a market in
the Preferred Securities prior to the commencement of trading on the New York
Stock Exchange. The Representatives will have no obligation to make a market in
the Preferred Securities, however, and may cease market-making activities, if
commenced, at any time.
S-44
<PAGE>
Until the distribution of the Preferred Securities is completed, rules of
the Securities and Exchange Commission may limit the ability of the Underwriters
and certain selling group members to bid for and purchase the Preferred
Securities. As an exception to these rules, the Representatives are permitted to
engage in certain transactions that stabilize the price of the Preferred
Securities. Such transactions consist of bids or purchases for the purpose of
pegging, fixing or maintaining the price of the Preferred Securities.
If the Underwriters create a short position in the Preferred Securities in
connection with the offering, i.e., if they sell more shares of Preferred
Securities than are set forth on the cover page of this Prospectus, the
Representatives may reduce that short position by purchasing Preferred
Securities in the open market.
The Representatives may also impose a penalty bid on certain Underwriters
and selling group members. This means that if the Representatives purchase
shares of Preferred Securities in the open market to reduce the Underwriters'
short position or to stabilize the price of the Preferred Securities, they may
reclaim the amount of the selling concession from the Underwriters and selling
group members who sold those shares as part of the offering.
In general, purchases of a security for the purpose of stabilization or to
reduce a short position could cause the price of the security to be higher than
it might be in the absence of such purchases. The imposition of a penalty bid
might also have an effect on the price of a security to the extent that it were
to discourage resales of the security.
Neither the Company nor any of the Underwriters makes any representation or
prediction as to the direction or magnitude of any effect that the transactions
described above may have on the price of the Preferred Securities. In addition,
neither the Company nor any of the Underwriters makes any representation that
the Representatives will engage in such transactions or that such transactions,
once commenced, will not be discontinued without notice.
Prior to this offering there has been no public market for the Preferred
Securities. In order to meet one of the requirements for listing the Preferred
Securities on the New York Stock Exchange, the Underwriters will undertake to
sell lots of 100 or more Preferred Securities to a minimum of 400 beneficial
holders.
PLC Capital and Protective Life have agreed to indemnify the Underwriters
against, or contribute to payments that the Underwriters may be required to make
in respect of, certain liabilities, including liabilities under the Securities
Act.
Certain of the Underwriters engage in transactions with, and, from time to
time, have performed services for, Protective Life and its subsidiaries in the
ordinary course of business.
LEGAL MATTERS
Certain matters of Delaware law relating to the validity of the Preferred
Securities will be passed upon for PLC Capital by Richards, Layton & Finger,
P.A., special Delaware counsel to the Company and PLC Capital. The validity of
the Subordinated Debt Securities and the Preferred Securities Guarantees and
certain matters relating thereto will be passed upon for Protective Life by
Debevoise & Plimpton. Certain United States federal income taxation matters will
be passed upon for Protective Life and PLC Capital by Debevoise & Plimpton,
special tax counsel to Protective Life and PLC Capital. Debevoise & Plimpton may
rely on the opinon of Richards, Layton & Finger, P.A. as to certain matters of
Delaware law.
S-45
<PAGE>
SUBJECT TO COMPLETION, DATED JULY 8, 1997
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>
PROSPECTUS
PROTECTIVE LIFE CORPORATION
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
STOCK PURCHASE CONTRACTS
STOCK PURCHASE UNITS
PLC CAPITAL TRUST II
PLC CAPITAL TRUST III
PLC CAPITAL TRUST IV
PREFERRED SECURITIES
GUARANTEED TO THE EXTENT SET FORTH HEREIN BY
PROTECTIVE LIFE CORPORATION
------------------------
Protective Life Corporation, a Delaware corporation ("Protective Life" or
the "Company"), may from time to time offer (a) its debt securities ("Debt
Securities"), in one or more series, which may be either senior debt securities
("Senior Debt Securities") or subordinated debt securities ("Subordinated Debt
Securities"), (b) shares of its preferred stock, par value $1.00 per share
("Preferred Stock"), in one or more series, (c) shares of its common stock, par
value $.50 per share ("Common Stock"), (d) its stock purchase contracts ("Stock
Purchase Contracts") to purchase Common Stock and/or (e) its stock purchase
units ("Stock Purchase Units"), each representing ownership of a Stock Purchase
Contract and Debt Securities or Preferred Securities or debt obligations of
third parties, including U.S. Treasury Securities (as hereinafter defined), and
PLC Capital Trust II, PLC Capital Trust III and PLC Capital Trust IV (each, a
"PLC Capital Trust"), may from time to time offer their preferred securities
which may be designated as preferred securities or capital securities
("Preferred Securities"), in each case in amounts, at prices and on terms to be
determined at the time or times of offering. The Debt Securities, Preferred
Stock, Common Stock, Stock Purchase Contracts, Stock Purchase Units and
Preferred Securities are referred to herein collectively as the "Offered
Securities". The aggregate initial offering price of the Offered Securities in
respect of which this Prospectus is being delivered will not exceed U.S.
$200,000,000 (or its equivalent (based on the applicable exchange rate at the
time of issue), in one or more foreign currencies or currency units as shall be
designated by Protective Life).
The PLC Capital Trusts, which are each statutory business trusts formed
under the laws of the State of Delaware, were formed by Protective Life solely
to issue their Preferred Securities, representing preferred undivided beneficial
interests in the assets of the respective PLC Capital Trust, and their common
securities ("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 having the terms described herein. Interest and principal
payments on the Subordinated
<PAGE>
(CONTINUED ON NEXT PAGE)
------------------------------
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.
------------------------
THE DATE OF THIS PROSPECTUS IS , 1997.
<PAGE>
(CONTINUED FROM PREVIOUS PAGE)
Debentures are intended to fund the payment of periodic distributions
("distributions") and redemption and liquidation distributions on the Preferred
Securities and the Common Securities. The payment of distributions with respect
to Preferred Securities of each of the PLC Capital Trusts out of moneys held by
each of the PLC Capital Trusts, and payment on liquidation, redemption or
otherwise with respect to such Preferred Securities, will be guaranteed by
Protective Life to the extent described herein (each a "Preferred Securities
Guarantee"). See "Description of the Preferred Securities Guarantees" below.
Protective Life's obligations under the Preferred Securities Guarantees will
rank (i) subordinate and junior in right of payment to all present and future
Senior Indebtedness (as such term is defined in the Subordinated Indenture (as
hereinafter defined)), (ii) PARI PASSU with the Company's guarantees (each, a
"Common Guarantee") with respect to the Common Securities of the PLC Capital
Trusts, Subordinated Debt Securities, the Company's guarantee (the "Series A
Guarantee") of PLC Capital L.L.C.'s 9% Cumulative Monthly Income Preferred
Securities, Series A (the "Series A Preferred Securities"), the Company's 9%
Subordinated Debentures, due 2024, Series A (the "Series A Subordinated
Debentures"), the Company's guarantee of PLC Capital Trust I's 8 1/4% Trust
Originated Preferred Securities (the "Trust I Preferred Securities"), the
Company's guarantee (the "8 1/4% Common Guarantee, " and together with the
8 1/4% Preferred Guarantee, the "8 1/4% TOPrS Guarantees") of PLC Capital Trust
I's 8 1/4% Trust Originated Common Securities (the "Trust I Common Securities,"
and together with the Trust I Preferred Securities, the "Trust I TOPrS"), the
Company's 8 1/4% Subordinated Debentures, due 2027, Series B (the "Series B
Subordinated Dentures") and any other liabilities or obligations that may be
PARI PASSU by their terms and (iii) senior to the Company's Common Stock, the
most senior preferred or preference stock now or hereafter issued by the Company
and with any guarantee now or hereafter entered into by Protective Life in
respect to any preferred or preference stock of any affiliate of the Company.
Subordinated Debt Securities may be issued and sold from time to time in one or
more series to a PLC Capital Trust, or a trustee of such PLC Capital Trust, in
connection with the investment of the proceeds from the offering of Preferred
Securities and Common Securities of such PLC Capital Trust. The Subordinated
Debt Securities purchased by an PLC Capital Trust may be subsequently
distributed pro rata to holders of Preferred Securities and Common Securities in
connection with the dissolution of such PLC Capital Trust upon the occurrence of
certain events as may be described in an accompanying Prospectus Supplement.
Specific terms of the particular Offered Securities in respect of which this
Prospectus is being delivered will be set forth in an accompanying Prospectus
Supplement (the "Prospectus Supplement"), which will describe, without
limitation and where applicable, the following: (i) in the case of Debt
Securities, the specific designation, aggregate principal amount, denominations,
maturity, premium, if any, interest rate (which may be fixed or variable) or
method of calculating interest, if any, place or places where principal,
premium, if any, and interest, if any, will be payable, currency in which
principal, premium, if any, and interest, if any, will be payable, any terms of
redemption, any sinking fund provisions, any listing on a securities exchange,
initial public offering or purchase price, conversion rights, methods of
distribution and other special terms, (ii) in the case of Preferred Stock and
Preferred Securities, the designation, number of securities, liquidation
preference per security, initial public offering price, any listing on a
securities exchange, dividend rate (or method of calculation thereof), dates on
which dividends shall be payable and dates from which dividends shall accrue,
any voting rights, any redemption, exchange or sinking fund provisions, any
other rights, preferences, privileges, limitations or restrictions relating to
the Preferred Stock or Preferred Securities of a specific series and, in the
case of Preferred Securities, the terms upon which the proceeds of the sale of
the Preferred Securities will be used to purchase a specific series of
Subordinated Debt Securities of Protective Life, (iii) in the case of Stock
Purchase Contracts, the designation and number of shares of Common Stock
issuable thereunder, the purchase price of Common Stock, the date or dates on
which the Common Stock is required to be purchased by the holders of the Stock
Purchase Contracts, any periodic payments required to be made by the Company to
the holders of the Stock Purchase Contract or vice versa, and the terms of the
offering and sale thereof, (iv) in the case of Stock Purchase Units, the
specific terms of the Stock Purchase Contracts and any Debt Securities or
Preferred Securities or debt obligations of third parties securing the holder's
obligation to purchase the
2
<PAGE>
Common Stock under the Stock Purchase Contracts, and the terms of the offering
and sale thereof, and (v) in the case of Common Stock, the number of shares
offered, the methods of distribution and the public offering or purchase price.
Protective Life's Common Stock is listed on the New York Stock Exchange under
the trading symbol "PL". Any Common Stock sold pursuant to a Prospectus
Supplement will be listed on such exchange, subject to official notice of
issuance.
The Prospectus Supplement will also contain information, as applicable,
about certain United States federal income tax considerations relating to the
Offered Securities in respect of which this Prospectus is being delivered.
The Debt Securities will be unsecured. Unless otherwise specified in a
Prospectus Supplement, the Senior Debt Securities will rank equally with all
other unsecured and unsubordinated indebtedness of Protective Life. The
Subordinated Debt Securities will be subordinated in right of payment to all
present and future Senior Indebtedness (as defined herein) of Protective Life to
the extent described herein and in the Prospectus Supplement relating thereto.
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.
3
<PAGE>
No person has been authorized to give any information or to make any
representations other than those contained in this Prospectus, any accompanying
Prospectus Supplement or the documents incorporated or deemed incorporated by
reference herein, and any information or representations not contained herein or
therein must not be relied upon as having been authorized by Protective Life or
the PLC Capital Trusts or by any agent, dealer or underwriter. This Prospectus
and any accompanying Prospectus Supplement do not constitute an offer to sell or
a solicitation of an offer to buy the securities in any circumstances in which
such offer or solicitation is unlawful. The delivery of this Prospectus or any
Prospectus Supplement at any time does not imply that the information herein or
therein is correct as of any time subsequent to the date of such information.
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, Citicorp 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. The Commission maintains an Internet Website
that contains reports, proxy and information statements and other information
regarding registrants that file electronically with the Commission. The address
of the Commission's site is http://www.sec.gov.
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 the PLC Capital Trusts 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, the PLC
Capital Trusts 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 the PLC Capital Trusts have been
included herein or incorporated herein by reference. Protective Life and the PLC
Capital Trusts do not consider that such financial statements would be material
to holders of the Preferred Securities because (i) all of the voting securities
of each of the PLC Capital Trusts will be owned, directly or indirectly, by
Protective Life, a reporting company under the Exchange Act, (ii) each of the
PLC Capital Trusts has no independent operations but exists for the sole purpose
of issuing securities representing undivided beneficial interests in the assets
of such PLC Capital Trust and investing the proceeds thereof in Subordinated
Debt Securities issued by Protective Life and (iii) Protective Life's
obligations described herein and in any accompanying Prospectus Supplement,
under the Declaration (as defined herein) of each PLC Capital Trust, the
Preferred Securities Guarantees issued with respect to Preferred Securities
issued by that PLC Capital Trust and the related back-up undertakings, the
Subordinated Debt Securities purchased by that PLC Capital Trust and the related
Subordinated Indenture, taken together, constitute a full and unconditional
guarantee of payments due on the Preferred Securities. See "Description of Debt
Securities of Protective Life--Subordination Under the Subordinated Indenture"
and "Description of the Preferred Securities Guarantees of the PLC Capital
Trusts."
4
<PAGE>
The PLC Capital Trusts are not currently subject to the information
reporting requirements of the Exchange Act. The PLC Capital Trusts will become
subject to such requirements upon the effectiveness of the Registration
Statement, although they intend to seek and expect to receive exemptions
therefrom.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Protective Life's Quarterly report on form 10-Q for the three month period
ended March 31, 1997, Annual Report on Form 10-K for the year ended December 31,
1996, and Current Reports on Form 8-K dated April 23, 1997 and February 11,
1997, as filed with the Commission pursuant to the Exchange Act (File No.
1-12332), and the description of Protective Life's Common Stock contained in its
Registration Statement on Form 10 filed pursuant to Section 12 of the Exchange
Act on September 4, 1981, as amended by an amendment thereto filed on Form 8 on
October 27, 1981 and the description of Protective Life's Rights to Purchase
Series A Junior Participating Cumulative Preferred Stock contained in its Form
8-A filed on August 7, 1995 including any amendment or report filed for the
purpose of updating such descriptions prior to the termination of the offering,
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: Stockholder
Relations, Protective Life Corporation, P.O. Box 2606, Birmingham, Alabama 35202
(telephone: (205) 868-3573; facsimile (205) 868-3541).
5
<PAGE>
PROTECTIVE LIFE CORPORATION
Protective Life, a Delaware corporation incorporated in 1981, is an
insurance holding company that, through its subsidiary life insurance companies,
produces, distributes and services a diverse array of insurance and investment
products. Protective Life markets individual life insurance, dental insurance,
group life and health insurance, credit life and disability insurance,
guaranteed investment contracts and annuities throughout the United States. The
Company also maintains a separate line of business devoted exclusively to the
acquisition of insurance policies from other companies and participates in a
joint venture which owns a life insurance company in Hong Kong. Protective Life
Insurance Company ("Protective Life Insurance"), founded in 1907, is Protective
Life's principal operating subsidiary. 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 or dividends on any Preferred Stock or Common Stock 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., deeply subordinated intercompany notes owed by insurance
company subsidiaries to Protective Life that are treated as equity capital of
such insurance company subsidiaries 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. Under Tennessee insurance laws, Protective Life Insurance
generally may pay dividends to Protective Life only out of its unassigned
surplus as reflected in its statutory financial statements filed in that State.
In addition, the Tennessee Commissioner of Insurance must approve (or not
disapprove within 30 days of notice) payment of an "extraordinary" dividend from
Protective Life Insurance, which generally under Tennessee insurance laws is a
dividend that exceeds, together with all dividends paid by Protective Life
Insurance within the previous 12 months, the greater of (i) 10% of Protective
Life Insurance's surplus as regards policyholders at the preceding December 31
or (ii) the net gain from operations of Protective Life Insurance for the 12
months ended on such December 31. 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 insurance regulatory authorities.
In the event of the insolvency, liquidation, reorganization, dissolution or
other winding-up of an insurance 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) would be
entitled to receive any payment from the assets of such subsidiary.
6
<PAGE>
THE PLC CAPITAL TRUSTS
Each of the PLC Capital Trusts is a statutory business trust formed under
Delaware law pursuant to (i) a separate declaration of trust (each a
"Declaration") executed by the Company, as sponsor for such trust (the
"Sponsor") and the PLC Capital Trustees (as defined herein) for such trust and
(ii) the filing of a certificate of trust with the Delaware Secretary of State
on July 1, 1997. Each PLC Capital Trust exists for the exclusive purposes of (i)
issuing the Preferred Securities and Common Securities (together, the "Trust
Securities"), (ii) investing the gross proceeds of the Trust Securities in
Subordinated Debt Securities and (iii) engaging in only those other activities
necessary or incidental thereto. All of the Common Securities will be directly
or indirectly owned by the Company. The Common Securities will rank PARI PASSU,
and payments will be made thereon pro rata, with the Preferred Securities except
that upon an event of default under the applicable Declaration, the rights of
the holders of the Common Securities to payment in respect of distributions and
payments upon liquidation, redemption and otherwise will be subordinated to the
rights of the holders of the Preferred Securities. The Company will, directly or
indirectly, acquire Common Securities in an aggregate liquidation amount equal
to at least 3% of the total capital of each PLC Capital Trust. Each PLC Capital
Trust has a term of approximately 55 years, but may earlier terminate as
provided in its Declaration. Each PLC Capital Trust's business and affairs will
be conducted by the trustees (the "PLC Capital Trustees") appointed by the
Company, as the direct or indirect holder of all the Common Securities. The
holder of the Common Securities will be entitled to appoint, remove or replace
any of, or increase or reduce the number of, the PLC Capital Trustees of each
PLC Capital Trust. The duties and obligations of the PLC Capital Trustees shall
be governed by the Declaration of such PLC Capital Trust. A majority of the PLC
Capital Trustees (the "Regular Trustees") of each PLC Capital Trust will be
persons who are employees or officers of or affiliated with the Company. One PLC
Capital Trustee of each PLC Capital Trust will be a financial institution which
will be unaffiliated with the Company and which shall act as property trustee
and as indenture trustee for purposes of the Trust Indenture Act of 1939 (the
"Trust Indenture Act"), pursuant to the terms set forth in a Prospectus
Supplement (the "Property Trustee" or the "Institutional Trustee"). In addition,
unless the Property Trustee maintains a principal place of business in the State
of Delaware, and otherwise meets the requirements of applicable law, one PLC
Capital Trustee of each PLC Capital Trust will have its principal place of
business or reside in the State of Delaware (the "Delaware Trustee"). The
Company will pay all fees and expenses related to the PLC Capital Trusts and the
offering of Trust Securities, the payment of which will be guaranteed by the
Company. The office of the Delaware Trustee for each PLC Capital Trust in the
State of Delaware is Wilmington Trust Company, Rodney Square North, 1100 North
Market Street, Wilmington, Delaware 19890. Each PLC Capital Trust's offices are
located at 2801 Highway 280 South, Birmingham, Alabama 35223 (Telephone: (205)
879-9230).
USE OF PROCEEDS
Except as otherwise described in the applicable Prospectus Supplement, the
proceeds from the sale by any PLC Capital Trust of any Preferred Securities
(together with any capital contributed in respect of Common Securities) will be
loaned to Protective Life in exchange for Subordinated Debt Securities.
Protective Life will use borrowings from PLC Capital Trusts, and the net
proceeds from any sale of Debt Securities, Preferred Stock, Common Stock, Stock
Purchase Contracts and Stock Purchase Units for general corporate purposes,
including, but not limited to, repayments of indebtedness of Protective Life or
its subsidiaries. Pending such use, the proceeds may be invested temporarily in
short-term marketable securities. A more detailed description of the use of
proceeds of any specific offering of Offered Securities shall be set forth in
the Prospectus Supplement pertaining to such offering.
7
<PAGE>
CONSOLIDATED EARNINGS RATIOS
The following table sets forth Protective Life's ratios of consolidated
earnings to fixed charges, consolidated earnings to combined fixed charges and
distributions on Series A Preferred Securities and consolidated earnings to
combined fixed charges, distributions on Series A Preferred Securities and
interest credited on investment products for the years and periods indicated:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------------------------------------
<S> <C> <C> <C> <C> <C>
1992 1993 1994 1995 1996
--------- --------- --------- --------- ---------
Ratio of Consolidated Earnings to Fixed Charges (1)...................... 13.5 14.4 14.7 13.6 14.9
Ratio of Consolidated Earnings to Combined Fixed Charges and
Distributions on Series A Preferred Securities(2)...................... 13.5 14.4 10.8 9.0 10.0
Ratio of Consolidated Earnings to Combined Fixed Charges, Distributions
on Series A Preferred Securities and Interest Credited on Investment
Products(3)............................................................ 1.3 1.4 1.4 1.4 1.5
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
--------------------
<S> <C> <C>
1996 1997
--------- ---------
Ratio of Consolidated Earnings to Fixed Charges (1)...................... 13.2 11.8
Ratio of Consolidated Earnings to Combined Fixed Charges and
Distributions on Series A Preferred Securities(2)...................... 9.1 8.8
Ratio of Consolidated Earnings to Combined Fixed Charges, Distributions
on Series A Preferred Securities and Interest Credited on Investment
Products(3)............................................................ 1.4 1.8
</TABLE>
- ------------------------
(1) The ratio of consolidated earnings to fixed charges is calculated by
dividing the sum of income before income tax (excluding pre-tax minority
interest but not excluding distributions on Series A Preferred Securities
reported as minority interest) and interest expense on debt, by interest
expense on debt.
(2) The ratio of consolidated earnings to combined fixed charges and
distributions on Series A Preferred Securities is calculated by dividing the
sum of income before income tax (excluding pre-tax minority interest but not
excluding distributions on Series A Preferred Securities reported as
minority interest) and interest expense on debt, by interest expense on debt
and distributions on Series A Preferred Securities. The ratio of
consolidated earnings to combined fixed charges and distributions on Series
A Preferred Securities does not include distributions on the Trust I TOPrS
issued in April 1997.
(3) The ratio of consolidated earnings to interest on debt, distributions on
Series A Preferred Securities, and interest credited on investment products
is calculated by dividing the sum of income before income tax (excluding
pre-tax minority interest but not excluding distributions on Series A
Preferred Securities reported as minority interest), interest expense on
debt and interest credited on investment products, by the sum of interest
expense on debt, distributions on Series A Preferred Securities and interest
credited on investment products. Investment products include products such
as guaranteed investment contracts and annuities. The ratio of consolidated
earnings to combined fixed charges, distributions on Series A Preferred
Securities and interest credited on investment products does not include
distributions on the Trust I TOPrS issued in April 1997.
8
<PAGE>
DESCRIPTION OF DEBT SECURITIES OF PROTECTIVE LIFE
The Senior Debt Securities offered hereby are to be issued in one or more
series under the Senior Indenture, dated as of June 1, 1994, between Protective
Life and The Bank of New York, as trustee (the "Senior Trustee"), as
supplemented by Supplemental Indenture No. 1, dated as of July 1, 1994,
Supplemental Indenture No. 2, dated as of August 1, 1996, Supplemental Indenture
No. 3, dated as of September 15, 1996, Supplemental Indenture No. 4, dated as of
November 15, 1996 and Supplemental Indenture No. 5, dated as of December 1, 1996
(as so supplemented, the "Senior Indenture"). The Subordinated Debt Securities
offered hereby are to be issued under the Subordinated Indenture, dated as of
June 1, 1994, between Protective Life and AmSouth Bank (successor by merger to
AmSouth Bank of Alabama, successor by conversion of charter, to AmSouth Bank
N.A.) (hereinafter referred to as "AmSouth Bank"), as trustee (the "Subordinated
Trustee," and together with the Senior Trustee, the "Trustees"), as amended and
supplemented by Supplemental Indenture No. 1, dated as of June 9, 1994,
Supplemental Indenture No. 2, dated as of August 1, 1994 and Supplemental
Indenture No.3, dated as of April 29, 1997 (as so supplemented and amended, the
"Subordinated Indenture" and, together with the Senior Indenture, the
"Indentures"), copies of which have been filed as exhibits to the Registration
Statement of which this Prospectus forms a part.
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 (as they may be amended or supplemented from time
to time), including the definitions therein of certain terms capitalized in this
Prospectus. Whenever particular Sections or defined terms of the Indentures (as
they may be amended or supplemented from time to time) are referred to herein or
in a Prospectus Supplement, such Sections or defined terms are incorporated
herein or therein by reference.
GENERAL
The Debt Securities will be unsecured obligations of Protective Life. The
Senior Debt Securities will be unsecured and will rank PARI PASSU with all other
unsecured and unsubordinated obligations of Protective Life. The Subordinated
Debt Securities will be subordinate and junior in right of payment to the extent
and in the manner set forth in the Subordinated Indenture to all present and
future 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. Except as otherwise provided in
the applicable Prospectus Supplement, the Indentures, as they apply to any
series of Debt Securities, also do not 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 or at the option of a
holder thereof 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
9
<PAGE>
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 the amount of
principal of, or any premium or interest on, any of such Debt Securities may be
determined with reference to an index or pursuant to a formula, the manner in
which such amounts will be determined; (13) 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; (14) if the principal amount
payable at the Stated Maturity of any of such Debt Securities will not be
determinable as of any one or more dates prior to the Stated Maturity, the
amount which will be deemed to be such principal amount as of any such date for
any purpose, including the principal amount thereof which will be due and
payable upon any maturity other than the Stated Maturity or which will be deemed
to be Outstanding as of any such date (or, in any such case, the manner in which
such deemed principal amount is to be determined); (15) 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; (16)
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; (17) the application, if any, of such means of defeasance or
covenant defeasance as may be specified for such Debt Securities; (18) 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; (19) in the case of the
Subordinated Indenture, the terms, if any, upon which such Debt Securities may
be converted or exchanged, at the option of the holders thereof, into or for
Common Stock of Protective Life or other securities or property; and (20) any
other terms not inconsistent with the terms of the Indentures pertaining to such
Debt Securities. (Section 3.1 of each Indenture.) Unless otherwise specified in
the applicable Prospectus Supplement, the Debt Securities will not be listed on
any securities exchange.
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.)
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.
If any index is used to determine the amount of payments of principal of,
premium, if any, or interest on any series of Debt Securities, special federal
income tax, accounting and other considerations applicable thereto will be
described in the applicable Prospectus Supplement.
10
<PAGE>
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.)
All moneys paid by Protective Life to the Debt Trustees or a paying agent
for the payment of the principal of, or any premium or interest on, any Debt
Security which remain unclaimed at the end of two years after such principal,
premium or interest has become due and payable will be repaid to Protective
Life, and the holder of such Security thereafter may look only to Protective
Life for payment thereof. (Section 9.3 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"). Each Registered Global Security will be registered in the name of a
depository (the "Depository") or a nominee for the Depository identified in the
applicable Prospectus Supplement, will be deposited with such Depository or
nominee or a custodian therefor and will bear a legend regarding the
restrictions on exchanges and registration of transfer thereof referred to below
and any such other matters as may be provided for pursuant to each Indenture. 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 transferred or exchanged except as a whole by the Depository for such
Registered Global Security to a nominee of such Depository or by a nominee of
such Depository to such
11
<PAGE>
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. (Section 3.8 of 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 3.5 of each Indenture.)
Ownership of beneficial interests in a Global Security will be limited to
participants and to persons that may hold beneficial interests through
participants. 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. Nevertheless, payments, transfers,
exchanges and other matters relating to beneficial interests in a Registered
Global Security may be subject to various policies and procedures adopted by the
Depository from time to time. None of Protective Life, the respective Debt
Trustee or any agent of Protective Life or the respective Debt Trustee 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
notifies Protective Life that it is 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, (ii) immediately after giving effect to such transaction, no Default
(as defined herein) or Event of Default shall have happened and be continuing
and (iii) if, as a result of such transaction, properties or assets of
Protective Life would become subject to a mortgage, pledge, lien, security
interest or other encumbrance not permitted by the Debt Securities of any
series, Protective Life or its successor shall take steps necessary to secure
such Debt Securities equally and ratably with all indebtedness secured thereby.
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
Debt 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 Debt Trustee for such series, if notice is given by
such holders of Debt
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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.)
Except as otherwise provided in a Prospectus Supplement relating to the Debt
Securities of a particular series, 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 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 Debt 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 in payment of principal relating to
indebtedness of Protective Life and its consolidated subsidiaries for borrowed
money having an aggregate principal amount exceeding $25 million (after the
expiration of any applicable grace period with respect thereto), or other
default resulting in acceleration of indebtedness of Protective Life and its
consolidated subsidiaries 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 respective Debt Trustee or to Protective Life and the respective Debt
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 such Event of
Default is remedied, cured or waived; and (e) certain events of bankruptcy,
insolvency or reorganization of Protective Life or Protective Life Insurance.
(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 respective Debt 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 respective Debt Trustee may withhold the notice if and so
long as the Board of Directors of Protective Life, the executive committee
thereof or 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 Debt Trustee for such series, or exercising any trust or power conferred on
such Debt Trustee. (Section 5.8 of each Indenture.)
Each Indenture includes a covenant that Protective Life will file annually
with the respective Debt Trustee a certificate as to Protective Life's
compliance with all conditions and covenants of such Indenture. (Section 9.6 of
each Indenture.)
The holders of a majority in aggregate principal amount of any series of
Debt Securities by written notice to the Debt Trustee for such series may waive,
on behalf of the holders of all Debt Securities of such
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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
respective Debt 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 Debt Trustees or to add or change any provisions to such extent as
necessary to permit or facilitate the appointment of a separate Debt Trustee or
Debt Trustees for specific series of Debt Securities; (ix) if allowed without
penalty under applicable laws and regulations, to permit payment in respect of
Debt Securities in bearer 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 or to cure any
ambiguity or correct any mistake, PROVIDED that any such action does not
adversely affect the interests of any holder of Debt Securities of any series
then outstanding; or (xi) in the case of the Subordinated Indenture, to modify
the subordination provisions thereof in a manner not adverse to the holders of
Subordinated Debentures of any series then outstanding (and in the case of
Subordinated Debentures issued in return for the proceeds of Preferred
Securities of any series then outstanding, not adverse to the holders of such
Preferred Securities). (Section 8.1 of each Indenture.)
Each Indenture also contains provisions permitting Protective Life and the
respective Debt 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 interest rate, the amount of
principal or 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 Indexed 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; (ix) in the case of the Subordinated
Indenture, modify the subordination provisions thereof in a manner adverse to
the holders of Subordinated Debentures of any series then outstanding (and in
the case of Subordinated Debentures issued in return for the proceeds of
Preferred Securities of any series then outstanding, adverse to the holders of
such Preferred Securities); or (x) modify the provisions relating to waiver of
certain defaults or any of the foregoing provisions. (Section 8.2 of each
Indenture.)
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SUBORDINATION UNDER THE SUBORDINATED INDENTURE
In the Subordinated Indenture, Protective Life has covenanted and agreed
that any Subordinated Debt Securities issued thereunder are subordinate and
junior in right of payment to all present and future 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 which is 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 (requesting that payments on
Subordinated Debt Securities cease) 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.
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 present and future
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 present and future 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.
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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 present and future 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.
The Subordinated Indenture places no limitation on the amount of additional
Senior Indebtedness that may be incurred by Protective Life. Protective Life
expects from time to time to incur additional indebtedness constituting Senior
Indebtedness.
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 Debt 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
relevant Debt Trustee an Officer's Certificate and 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 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.
Additional conditions to defeasance include (x) delivery by Protective Life to
the relevant Debt Trustee of an Officer's Certificate to the effect that neither
such Debt Securities nor any other Debt Securities of the same series, if then
listed on any securities exchange, will be delisted as a result of such
defeasance, (y) no Event of Default with respect to such Debt Securities or any
other Debt Securities occurring or continuing at the time of such defeasance or,
in the case of certain bankruptcy Events of Default, at any time on or prior to
the 90th day after the date of such defeasance and (z) such defeasance not
resulting in the trust arising from the deposit of any moneys in respect of such
defeasance constituting an "investment company" within the meaning of the
Investment Company Act unless such trust shall be registered under such Act or
exempt from registration thereunder. (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. (Sections 1.1 and 3.1 of each Indenture.)
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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 and coupons
appertaining thereto 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. (Section 4.6 of the
Subordinated Indenture.)
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 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.
NOTICES
Notices to holders of registered Debt Securities will be given by mail to
the addresses of such holders as they may appear in the Register. (Section 1.6
of each Indenture)
TITLE
Protective Life, the Debt Trustees and any agent of Protective Life or the
Debt Trustees may treat the Person in whose name a Debt Security is registered
as the absolute owner thereof (whether or not such Debt Security may be overdue)
for the purpose of receiving payment and for all other purposes. (Section 3.8 of
each Indenture.)
GOVERNING LAW
The Indentures and the Debt Securities will be governed by, and construed in
accordance with, the laws of the State of New York. (Section 1.11 of each
Indenture.)
THE DEBT TRUSTEES
The Bank of New York is the Debt Trustee under the Senior Indenture. AmSouth
Bank is the Debt Trustee under the Subordinated Indenture. Protective Life may
also maintain banking and other commercial relationships with each of the Debt
Trustees and their affiliates in the ordinary course of business. The Indentures
contain certain limitations on the right of each Debt Trustee, should it become
a creditor of Protective Life, to obtain payment of claims in certain cases, or
to realize for its own account on certain property received in respect of any
such claim as security or otherwise. Each Debt Trustee will be permitted to
engage in certain other transactions; however, if it acquires any conflicting
interest and there is a default under the Debt Securities, it must eliminate
such conflict or resign.
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DESCRIPTION OF CAPITAL STOCK OF PROTECTIVE LIFE
AUTHORIZED AND OUTSTANDING CAPITAL STOCK
The authorized capital stock of Protective Life is 84,000,000 shares,
consisting of:
(a) 3,600,000 shares of Preferred Stock, par value $1.00 per share, of
which no shares were outstanding as of March 31, 1997;
(b) 400,000 shares of Series A Junior Participating Cumulative Preferred
Stock, par value $1.00 per share (the "Junior Preferred Stock"), of which no
shares were outstanding as of March 31, 1997; and
(c) 80,000,000 shares of Common Stock, par value $.50 per share (the
"Common Stock"), of which 30,807,526 shares (as well as the same number of
Rights ("Rights") to purchase shares of Series A Junior Participating
Cumulative Preferred Stock pursuant to the Rights Agreement, dated August 7,
1995 (the "Rights Agreement"), between Protective Life and AmSouth Bank, as
Rights Agent) were outstanding as of March 31, 1997.
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 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 any
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 (i) Restated Certificate of Incorporation of
Protective Life, as amended (the "Restated Certificate of Incorporation"), (ii)
the By-laws of Protective Life and (iii) the Rights Agreement, copies of each of
which are filed as exhibits to the Registration Statement of which this
Prospectus forms a part.
No holders of any class of Protective Life's capital stock are entitled to
preemptive rights.
DESCRIPTION OF PREFERRED STOCK OF PROTECTIVE LIFE
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.
DESCRIPTION OF COMMON STOCK OF PROTECTIVE LIFE
GENERAL
Subject to the rights of the holders of any shares of Preferred Stock which
may at the time be outstanding, holders of Common Stock are entitled to such
dividends as the Board of Directors may declare out of funds legally available
therefor. The holders of Common Stock will possess exclusive voting rights in
Protective Life, except to the extent the Board of Directors specifies voting
power with respect to any Preferred Stock issued. Except as hereinafter
described, holders of Common Stock are entitled to one vote for each share of
Common Stock, but will not have any right to cumulate votes in the election of
directors. In the event of liquidation, dissolution or winding up of Protective
Life, the holders of Common
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Stock are entitled to receive, after payment of all of Protective Life's debts
and liabilities and of all sums to which holders of any Preferred Stock may be
entitled, the distribution of any remaining assets of Protective Life. Holders
of Common Stock will not be entitled to preemptive rights with respect to any
shares which may be issued. Any shares of Common Stock sold hereunder will be
fully paid and nonassessable. AmSouth Bank is the registrar and transfer agent
for the Common Stock. The Common Stock is listed on the New York Stock Exchange
under the symbol "PL."
CERTAIN PROVISIONS
The provisions of Protective Life's Restated Certificate of Incorporation
that are summarized below may be deemed to have an anti-takeover effect and may
delay, defer or prevent a tender offer or takeover attempt that a stockholder
might consider to be in such stockholder's best interests, including those
attempts that might result in a premium over the market price for the shares
held by stockholders.
ISSUANCE OF PREFERRED STOCK. Pursuant to the Restated Certificate of
Incorporation, the Board of Directors by resolution may establish one or more
series of Preferred Stock having such number of shares, designation, relative
voting rights, dividend rights, dividend rates, liquidation and other rights,
preferences and limitations as may be fixed by the Board of Directors without
any further stockholder approval. Such rights, preferences, privileges and
limitations as may be established could have the effect of impeding or
discouraging the acquisition of control of Protective Life.
BUSINESS COMBINATIONS. Protective Life's Restated Certificate of
Incorporation contains a "fair price" provision which generally requires that
certain "Business Combinations" (as defined herein) 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) at least a
majority of the "Continuing Directors" of Protective Life (i) has expressly
approved in advance the acquisition of Protective Life's voting stock that
caused the Related Person involved in the Business Combination to become a
Related Person or (ii) has approved the Business Combination, 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 Business Combination by holders of the
Common Stock of Protective Life other than the Related Person is not less than
the highest per share price (with appropriate adjustments for recapitalizations
and for stock splits, stock dividends and like distributions) 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
Reorganization of Protective Life or a subsidiary of Protective Life with or
into a Related Person, (ii) any sale, lease, exchange, transfer or other
disposition, including without limitation a pledge, mortgage or any other
security device, of all or any "Substantial Part" (as defined herein) of the
assets either of Protective Life or of a subsidiary of Protective Life, or both,
to a Related Person, (iii) any Reorganization of a Related Person with or into
Protective Life or a subsidiary of Protective Life, (iv) any sale, lease,
exchange, transfer or other disposition of all or any Substantial Part of the
assets of a Related Person to Protective Life or a subsidiary of Protective
Life, (v) the issuance 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, (vi) any reclassification of Protective Life's securities
(including any reverse stock split) or any other recapitalization that would
have the effect of increasing the voting power of a Related Person, and (vii)
any agreement, contract, plan 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 immediately 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
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question, as determined in good faith by a majority of the Continuing Directors
as of the end of its most recent fiscal year ending prior to the time the
determination is being made. "Reorganization" is defined to mean a merger,
consolidation, plan of exchange, sale of all or substantially all of the assets
(including, as pertains to a subsidiary of Protective Life, bulk reinsurance or
cession of substantially all of its policies and contracts) or other form of
corporate reorganization pursuant to which shares of voting stock, or other
securities of the subject corporation, are to be converted or exchanged into
cash or other property, securities or other consideration. Under the Restated
Certificate of Incorporation, the amendment of, repeal of or adoption of any
provision inconsistent with provisions of the Restated Certificate of
Incorporation relating to Business Combinations with a Related Person requires
the affirmative vote of the holders of at least 80 percent of Protective Life's
voting stock and the holders of at least 67 percent of Protective Life's voting
stock held by holders other than such Related Person.
SHARE PURCHASE RIGHTS PLAN
On August 7, 1995, the Board of Directors of Protective Life declared a
dividend distribution of one Right for each outstanding share of Common Stock.
The distribution was payable on August 18, 1995 to the shareholders of record on
that date. Each Right entitles the registered holder to purchase from Protective
Life one one-hundredth of a share of Junior Preferred Stock at a price of $110
per one one-hundredth of a share of Junior Preferred Stock (the "Purchase
Price"), subject to adjustment.
Until the earlier to occur of (i) ten days following the time of a public
announcement or notice to Protective Life that a person or group of affiliated
or associated persons (an "Acquiring Person") acquired, or obtained the right to
acquire, beneficial ownership of 15% or more of the outstanding Common Stock of
Protective Life (the "Stock Acquisition Time") or (ii) ten days following the
commencement or announcement of an intention to make a tender offer or exchange
offer which, if successful, would cause the bidder to own 15% or more of the
outstanding Common Stock (the earlier of such dates being called the
"Distribution Date"), the Rights will be evidenced, with respect to any of the
Common Stock certificates outstanding as of August 18, 1995, by such Common
Stock certificate with a copy of a "Summary of Rights" attached thereto. The
Rights Agreement provides that, until the Distribution Date, the Rights will be
transferred with and only with the Common Stock. Until the Distribution Date (or
earlier redemption or expiration of the Rights), new Common Stock certificates
issued after August 18, 1995, upon transfer or new issuance of the Common Stock,
will contain a notation incorporating the Rights Agreement by reference. Until
the Distribution Date (or earlier redemption or expiration of the Rights), the
surrender for transfer of any of the Common Stock certificates outstanding as of
August 18, 1995, even without a copy of a "Summary of Rights" attached thereto,
will also constitute the transfer of the Rights associated with the Common
Shares represented by such certificate. As soon as practicable following the
Distribution Date, separate certificates evidencing the Rights ("Right
Certificates") will be mailed to holders of record of the Common Stock as of the
close of business on the Distribution Date and such separate Right Certificates
alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date. The Rights will
expire on August 18, 2005, unless earlier redeemed by Protective Life as
described below or extended.
The Purchase Price payable, and the number of shares of Junior Preferred
Stock or other securities or property issuable upon exercise of the Rights are
subject to adjustment from time to time to prevent dilution (i) in the event of
a stock dividend on, or a subdivision, combination or reclassification of, the
Junior Preferred Stock, (ii) upon the fixing of a record date for the issuance
to holders of Junior Preferred Stock of certain rights, options or warrants to
subscribe for or purchase Junior Preferred Stock or convertible securities at
less than the current market price of Junior Preferred Stock or (iii) upon the
fixing of a record date for the making of a distribution to holders of Junior
Preferred Stock of evidences of indebtedness or assets (excluding regular
periodic cash dividends not exceeding 125% of the last regular periodic cash
dividend or dividends payable in Junior Preferred Stock) or of subscription
rights or warrants (other than those referred to above). The number of Rights
and number of shares of Junior Preferred
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Stock issuable upon the exercise of each Right are also subject to adjustment in
the event of a stock split, combination or stock dividend on the Common Stock
prior to the Distribution Date.
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractional shares of Common Stock will be issued and, in
lieu thereof, an adjustment in cash will be made based on the market value of
the Common Stock on the last trading date prior to the date of exercise.
In the event that after the Stock Acquisition Time, Protective Life is
acquired in a merger or other business combination transaction or 50% or more of
its assets, cash flow or earning power are sold or otherwise transferred, the
Rights Agreement provides that proper provision shall be made so that each
holder of a Right (other than the Acquiring Person) upon the exercise thereof at
the then-current exercise price of the Right, shall thereafter be entitled to
receive that number of shares of common stock of the acquiring company which at
the time of such transaction would have a market value of two times the exercise
price of the Right. In the event that Protective Life were the surviving
corporation in a merger and its Common Stock was changed or exchanged, proper
provision shall be made so that each holder of a Right (other than the Acquiring
Person) will thereafter have the right to receive upon exercise, that number of
shares of the Common Stock having a market value of two times the exercise price
of the Right.
In the event that a person or group becomes an Acquiring Person (otherwise
than pursuant to a tender offer or exchange offer for all outstanding shares of
Common Stock at a price and on terms which are determined to be fair and in the
best interests of Protective Life and its stockholders by a majority of the
members of the Board of Directors of Protective Life who are not Acquiring
Persons or representatives or nominees of or affiliated or associated with an
Acquiring Person), proper provision shall be made so that each holder of a
Right, other than Rights that were beneficially owned by the Acquiring Person,
which will thereafter be void, will thereafter have the right to receive upon
exercise that number of shares of Common Stock having a market value (as defined
in the Rights Agreement) of two times the exercise price of the Right. A person
or group will not be deemed to be an Acquiring Person if the Board of Directors
of Protective Life determines that such person or group became an Acquiring
Person inadvertently and such person or group promptly divests itself of a
sufficient number of shares of Common Stock so that such person or group is no
longer an Acquiring Person.
At any time prior to the earlier of (i) the Stock Acquisition Time and (ii)
August 18, 2005, Protective Life, by resolution of its Board of Directors, may
redeem the Rights in whole, but not in part, at a price of $.01 per Right (the
"Redemption Price"). Immediately upon the action of the Board of Directors
electing to redeem the Rights (or at such time subsequent to such action as the
Board of Directors may determine), the right to exercise the Rights will
terminate and the only right of the holders of Rights will be to receive the
Redemption Price.
At any time after a person becomes an Acquiring Person and prior to the
acquisition by such person of 50% or more of the outstanding Common Stock of
Protective Life, the Board of Directors of Protective Life may exchange the
Rights (other than Rights beneficially owned by such person which have become
void), in whole or in part, for Common Stock of Protective Life at an exchange
ratio of one share of Common Stock per Right (subject to adjustment). Protective
Life may at its option substitute shares of Junior Preferred Stock (or other
series of substantially similar preferred stock of Protective Life) for some or
all of the shares of Common Stock exchangeable for Rights, at an exchange ratio
of one one-hundredth of a share of Junior Preferred Stock (or such other series
of preferred stock) for each share of Common Stock to be exchanged.
Until a Right is exercised, the holder thereof, as such, will have no rights
as a stockholder of Protective Life, other than rights resulting from such
holder's ownership of shares of Common Stock, including, without limitation, the
right to vote or to receive dividends. Stockholders may, depending upon the
circumstances, recognize taxable income in the event that the Rights become
exercisable for Common
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Stock (or other consideration) of Protective Life or for common stock of the
acquiring company as set forth above.
The Rights and the Rights Agreement can be amended by the Board of Directors
of Protective Life in any respect (including, without limitation, any extension
of the period in which the Right Certificates may be redeemed) at any time prior
to the Stock Acquisition Time. From and after such time, without the approval of
the stockholders of Protective Life or the holders of the Rights, the Board of
Directors may only supplement or amend the Rights Agreement in order (i) to cure
any ambiguity, (ii) to correct or supplement any provision contained in the
Rights Agreement which may be defective or inconsistent with any other provision
in the Rights Agreement, (iii) to shorten or lengthen any time period under the
Rights Agreement or (iv) to make any changes or supplements which Protective
Life may deem necessary or desirable which shall not adversely affect the
interests of the holders of Right Certificates (other than an Acquiring Person
or an affiliate or associate of any such person), provided that any such action
by the Board of Directors must have the concurrence of a majority of the
Continuing Directors (as defined in the Rights Agreement) and provided that the
Continuing Directors constitute a majority of directors then in office, and
provided that the Rights Agreement may not be supplemented or amended to
lengthen (A) a time period relating to when the Rights may be redeemed or to
modify the ability (or inability) of Protective Life's Board of Directors to
redeem the Rights, in either case at such time as the Rights are not then
redeemable or (B) any other time period unless such lengthening is for a purpose
of protecting, enhancing or clarifying the Rights of or the benefits to the
holders of Rights (other than an Acquiring Person or an affiliate or associate
of any such person).
For purposes of the Rights Agreement, the term "Continuing Director" means
any member of the Board of Directors of Protective Life who was a member of the
Board prior to the Stock Acquisition Time, and any person who is subsequently
elected to the Board if such person is recommended or approved by a majority of
the Continuing Directors, but shall not include an Acquiring Person, or an
affiliate or associate of an Acquiring Person, or any representative of the
foregoing entities.
The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire Protective
Life in a manner which causes the Rights to become exercisable unless the offer
is conditioned on the Rights being redeemed. This potential dilution may have
the effect of delaying, deferring or discouraging attempts to acquire control of
Protective Life which are not approved by Protective Life's Board of Directors.
However, the Rights should not interfere with any merger or other business
combination approved by Protective Life's Board of Directors.
The foregoing description of the Rights Agreement is qualified in its
entirety by reference to the complete terms of the Rights as set forth in the
Rights Agreement. The Rights Agreement is incorporated by reference as an
exhibit to the Registration Statement of which this Prospectus is a part. A copy
of the Rights Agreement can be obtained as described under "Available
Information".
DESCRIPTION OF JUNIOR PREFERRED STOCK
GENERAL. In connection with the Rights Agreement, 400,000 shares of Junior
Preferred Stock have been reserved and authorized for issuance by the Board of
Directors of Protective Life. No shares of Junior Preferred Stock are
outstanding as of the date of this Prospectus. The following statements with
respect to the Junior Preferred Stock do not purport to be complete and are
subject to the detailed provisions of the Restated Certificate of Incorporation
and the certificate of designation relating to the Junior Preferred Stock (the
"Certificate of Designation"), which are filed as exhibits to the Registration
Statement of which this Prospectus is a part.
RANKING. The Junior Preferred Stock shall rank junior to all other series
of Protective Life's Preferred Stock as to the payment of dividends and the
distribution of assets, unless the terms of any such series shall provide
otherwise.
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DIVIDENDS AND DISTRIBUTIONS. Subject to the prior and superior rights of
the holders of any share of any series of Preferred Stock ranking prior to and
superior to the shares of Junior Preferred Stock with respect to dividends, the
holders of shares of Junior Preferred Stock, in preference to the holders of
Common Stock and of any other junior stock which may be outstanding, shall be
entitled to receive, when, as and if declared by the Board of Directors out of
funds legally available for that purpose, quarterly dividends payable in cash on
the first day of January, April, July and October in each year (each such date
being referred to herein as a "Quarterly Dividend Payment Date") commencing on
the first Quarterly Dividend Payment Date after the first issuance of a share or
fraction of a share of Junior Preferred Stock, in an amount per share (rounded
to the nearest cent) equal to the greater of (a) $2.50 per share ($10.00 per
annum) or (b) (subject to adjustment upon certain dilutive events) 100 times the
aggregate per share amount of all cash dividends, and 100 times the aggregate
per share amount (payable in kind) of all non-cash dividends or other
distributions, other than a dividend payable in shares of Common Stock or a
subdivision of the outstanding shares of Common Stock (by reclassification or
otherwise), declared on the Common Stock, since the immediately preceding
Quarterly Dividend Payment Date, or, with respect to the first Quarterly
Dividend Payment Date, since the first issuance of any share or fraction of a
share of Junior Preferred Stock.
Protective Life shall declare a dividend or distribution on the Junior
Preferred Stock immediately after it declares a dividend or distribution on the
Common Stock (other than a dividend payable in shares of Common Stock); provided
that, in the event no dividend or distribution shall have been declared on the
Common Stock during the period between any Quarterly Dividend Payment Date and
the next subsequent Quarterly Dividend Payment Date, a dividend of $2.50 per
share ($10.00 per annum) on the Junior Preferred Stock shall nevertheless be
payable on such subsequent Quarterly Dividend Payment Date.
VOTING RIGHTS. The holders of shares of Junior Preferred Stock shall have
the following voting rights: (a) subject to adjustment upon certain dilutive
events, each share of Junior Preferred Stock shall entitle the holder thereof to
100 votes (and each one one-hundredth of a share of Junior Preferred Stock shall
entitle the holder thereof to one vote) on all matters submitted to a vote of
the stockholders of Protective Life; (b) except as otherwise provided by the
Certificate of Designation, the Restated Certificate of Incorporation, any other
certificate of designation creating a series of preferred stock or any similar
stock or by law, the holders of shares of Junior Preferred Stock and the holders
of shares of Common Stock shall vote together as one class on all matters
submitted to a vote of stockholders of Protective Life; and (c) except as
provided in the Certificate of Designation or by applicable law, holders of
Junior Preferred Stock shall have no special voting rights and their consent
shall not be required for authorizing or taking any corporate action.
LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any liquidation (voluntary or
otherwise), dissolution or winding up of Protective Life, no distribution shall
be made to the holders of shares of stock ranking junior (either as to dividends
or upon liquidation, dissolution or winding up) to the Junior Preferred Stock
unless, prior thereto, the holders of shares of Junior Preferred Stock shall
have received the higher of (i) $10 per share, plus an amount equal to accrued
and unpaid dividends and distributions thereon, whether or not declared, to the
date of such payment, or (ii) an aggregate amount per share, subject to
adjustment upon certain dilutive events, equal to 100 times the aggregate amount
to be distributed per share to holders of Common Stock; nor shall any
distribution be made to the holders of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding-up) with the Junior
Preferred Stock, except distributions made ratably on the Junior Preferred Stock
and all other such parity stock in proportion to the total amounts to which the
holders of all such shares are entitled upon such liquidation, dissolution or
winding-up.
CONSOLIDATION, MERGER, ETC. In case Protective Life shall enter into any
consolidation, merger, combination or other transaction in which the shares of
Common Stock are exchanged for or changed into other stock or securities, cash
and/or any other property, or otherwise changed, then in any such case, each
share
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of Junior Preferred Stock shall at the same time be similarly exchanged or
changed into an amount per share (subject to adjustment upon certain dilutive
events) equal to 100 times the aggregate amount of stock, securities, cash
and/or any other property (payable in kind), as the case may be, into which or
for which each share of Common Stock is changed or exchanged.
CERTAIN RESTRICTIONS. Whenever quarterly dividends or other dividends or
distributions payable on the Junior Preferred Stock are in arrears, thereafter
and until all accrued and unpaid dividends and distributions, whether or not
declared, on shares of Junior Preferred Stock outstanding shall have been paid
in full, Protective Life shall not: (i) declare or pay dividends on, or make any
other distributions on any shares or stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding-up) to the Junior
Preferred Stock; (ii) declare or pay dividends, or make any other distributions,
on any shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding-up) with the Junior Preferred Stock except
dividends paid ratably on the Junior Preferred Stock, and all such parity stock
on which the dividends are payable or in arrears in proportion to the total
amounts to which the holders of all such shares are then entitled; (iii) redeem
or purchase or otherwise acquire for consideration shares of any stock ranking
on a parity (either as to dividends or upon liquidation, dissolution or
winding-up) with the Junior Preferred Stock, provided that Protective Life may
at any time redeem, purchase or otherwise acquire shares of any such parity
stock in exchange for shares of any stock of Protective Life ranking junior
(either as to dividends or upon liquidation, dissolution or winding up) to the
Junior Preferred Stock; or (iv) purchase or otherwise acquire for consideration
any shares of Junior Preferred Stock, or any shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or winding-up) with the
Junior Preferred Stock, except in accordance with a purchase offer made in
writing or by publication (as determined by the Board of Directors) to all
holders of such shares upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and other relative rights
and preferences of the respective series or classes, shall determine in good
faith will result in fair and equitable treatment among the respective series or
classes. Protective Life shall not permit any subsidiary of Protective Life to
purchase or otherwise acquire for consideration any shares of stock of
Protective Life unless Protective Life could, in accordance with the foregoing
restrictions, purchase or otherwise acquire such shares at such time and in such
manner.
REDEMPTION. The shares of Junior Preferred Stock are not redeemable.
CERTAIN LIMITATIONS ON DIVIDENDS AND OTHER PAYMENTS
Under the terms of the 9% Subordinated Debentures, Series A of Protective
Life and the 8 1/4% Subordinated Debentures, Series B of Protective Life
(together, the "A & B Debentures"), under certain conditions, Protective Life
has the right at any time to extend the interest payment period with respect to
the A & B Debentures. During any such extended interest period, or at any time
during which there is an uncured Default or Event of Default (as defined in the
Subordinated Indenture, see "Description of Debt Securities of Protective
Life--Events of Default, Notice and Certain Rights on Default") under the A & B
Debentures, Protective Life is prohibited from paying any dividends on, or
redeeming, purchasing, acquiring or making a liquidation payment with respect
to, any of its shares of capital stock or make any guarantee payments with
respect to the foregoing, with certain limited exceptions.
DESCRIPTION OF PREFERRED SECURITIES OF THE PLC CAPITAL TRUSTS
Each PLC Capital Trust may issue, from time to time, only one series of
Preferred Securities having terms described in the Prospectus Supplement
relating thereto. The Declaration of each PLC Capital Trust authorizes the
Regular Trustees of such PLC Capital Trust to issue on behalf of such PLC
Capital Trust one series of Preferred Securities. The Declarations will be
qualified as indentures under the Trust Indenture Act. The Institutional
Trustee, Wilmington Trust Company, an independent trustee, will act as indenture
trustee for the Preferred Securities, to be issued by each PLC Capital Trust,
for the purposes of compliance with the provisions of the Trust Indenture Act.
The Preferred Securities will have such terms, including
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distributions, redemption, voting, liquidation rights and such other preferred,
deferred or other special rights or such restrictions as shall be set forth in
the Declaration or made part of the Declaration by the Trust Indenture Act, and
which will mirror the terms of the Subordinated Debt Securities held by the PLC
Capital Trust and as described in the Prospectus Supplement related thereto.
Reference is made to the Prospectus Supplement relating to the Preferred
Securities of the respective PLC Capital Trust for specific terms, including (i)
the distinctive designation of such Preferred Securities; (ii) the number of
Preferred Securities issued by such PLC Capital Trust; (iii) the annual
distribution rate (or method of determining such rate) for Preferred Securities
issued by such PLC Capital Trust and the date or dates upon which such
distributions shall be payable; provided, however, that distributions on such
Preferred Securities shall be payable on a quarterly basis to holders of such
Preferred Securities as of a record date in each quarter during which such
Preferred Securities are outstanding; (iv) whether distributions on Preferred
Securities issued by such PLC Capital Trust shall be cumulative, and, in the
case of Preferred Securities having such cumulative distribution rights, the
date or dates or method of determining the date or dates from which
distributions on Preferred Securities issued by such PLC Capital Trust shall be
cumulative; (v) the amount or amounts which shall be paid out of the assets of
such PLC Capital Trust to the holders of Preferred Securities of such PLC
Capital Trust upon voluntary or involuntary dissolution, winding-up or
termination of such PLC Capital Trust; (vi) the obligation, if any, of such PLC
Capital Trust to purchase or redeem Preferred Securities issued by such PLC
Capital Trust and the price or prices at which, the period or periods within
which, and the terms and conditions upon which, Preferred Securities issued by
such PLC Capital Trust shall be purchased or redeemed, in whole or in part,
pursuant to such obligation (with such redemption price to be determined through
negotiations among the Company and the Underwriters based on, among other
factors, redemption prices of securities similar to the Preferred Securities and
market conditions generally); (vii) the voting rights, if any, of Preferred
Securities issued by such PLC Capital Trust in addition to those required by
law, including the number of votes per Preferred Security and any requirement
for the approval by the holders of Preferred Securities, or of Preferred
Securities issued by one or more PLC Capital Trusts, or of both, as a condition
to specified action or amendments to the Declaration of such PLC Capital Trust;
(viii) the terms and conditions, if any, upon which the Subordinated Debt
Securities may be distributed to holders of Preferred Securities; (ix) if
applicable, any securities exchange upon which the Preferred Securities shall be
listed; and (x) any other relevant rights, preferences, privileges, limitations
or restrictions of Preferred Securities issued by such PLC Capital Trust not
inconsistent with the Declaration of such PLC Capital Trust or with applicable
law. All Preferred Securities offered hereby will be guaranteed by the Company
to the extent set forth below under "Description of the Preferred Securities
Guarantees." The Preferred Securities Guarantee of Protective Life, when taken
together with Protective Life's obligations under the Subordinated Debt
Securities and the relevant Supplemental Indenture, and its obligations under
each Declaration, including obligations to pay costs, expenses, debts and
liabilities of the PLC Capital Trust (other than with respect to the Trust
Securities), would provide a full and unconditional guarantee of amounts due on
Preferred Securities issued by each of the PLC Capital Trusts. Any United States
federal income tax considerations applicable to any offering of Preferred
Securities will be described in the Prospectus Supplement relating thereto.
In connection with the issuance of Preferred Securities, each PLC Capital
Trust will issue one series of Common Securities. The Declaration of each PLC
Capital Trust authorizes the Regular Trustees of such trust to issue on behalf
of such PLC Capital Trust one series of Common Securities having such terms
including distributions, redemption, voting, liquidation rights or such
restrictions as shall be set forth therein. The terms of the Common Securities
issued by a PLC Capital Trust will be substantially identical to the terms of
the Preferred Securities issued by such trust and the Common Securities will
rank PARI PASSU, and payments will be made thereon pro rata, with the Preferred
Securities except that, upon an event of default under the Declaration, the
rights of the holders of the Common Securities to payment in respect of
distributions and payments upon liquidation, redemption and otherwise will be
subordinated to the rights of the holders of the Preferred Securities. Except in
certain limited circumstances, the Common Securities will also carry the right
to vote, and appoint, remove or replace any of the PLC Capital Trustees
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of a PLC Capital Trust. All of the Common Securities of each PLC Capital Trust
will be directly or indirectly owned by the Company.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF PREFERRED SECURITIES
If an Event of Default under the Declaration of a PLC Capital Trust occurs
and is continuing, then the holders of Preferred Securities of such PLC Capital
Trust would rely on the enforcement by the Property Trustee of its rights as a
holder of the applicable series of Subordinated Debt Securities against the
Company. In addition, the holders of a majority in liquidation amount of the
Preferred Securities of such PLC Capital Trust will have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Property Trustee or to direct the exercise of any trust or power conferred
upon the Property Trustee under the applicable Declaration, including the right
to direct the Property Trustee to exercise the remedies available to it as a
holder of the Subordinated Debt Securities. If an event of default under the
applicable Declaration has occurred and is continuing and such event is
attributable to the failure of Protective Life to pay interest or principal on
the applicable series of Subordinated Debt Securities (a "Debt Payment Failure")
on the date such interest or principal is otherwise payable (or in the case of
redemption, on the redemption date) and such Debt Payment Failure is continuing,
a holder of Preferred Securities of such PLC Capital Trust may directly
institute a proceeding for enforcement of payment to such holder of the
principal of or interest on the applicable series of Subordinated Debt
Securities having a principal amount equal to the aggregate liquidation amount
of the Preferred Securities of such holder (a "Direct Action") after the
respective due date specified in the applicable series of Subordinated Debt
Securities. In connection with such Direct Action, the Company will be
subrogated to the rights of such holder of Preferred Securities under the
applicable Declaration to the extent of any payment made by the Company to such
holder of Preferred Securities in such Direct Action.
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DESCRIPTION OF THE PREFERRED SECURITIES GUARANTEES
Set forth below is a summary of information concerning the Preferred
Securities Guarantees which will be executed and delivered by Protective Life
for the benefit of the holders from time to time of Preferred Securities. Each
Preferred Securities Guarantee will be qualified as an indenture under the Trust
Indenture Act. Wilmington Trust Company, an independent trustee, will act as
indenture trustee under each Preferred Securities Guarantee (the "Preferred
Guarantee Trustee") for the purposes of compliance with the provisions of the
Trust Indenture Act. The terms of each Preferred Securities Guarantee will be
those set forth in such Preferred Securities Guarantee and those made part of
such Preferred Securities Guarantee by the Trust Indenture Act. The following
summary does not purport to be complete and is subject in all respects to the
provisions of, and is qualified in its entirety by reference to, the form of
Preferred Securities Guarantee, which is filed as an exhibit to the Registration
Statement of which this Prospectus forms a part, and the Trust Indenture Act.
Each Preferred Securities Guarantee will be held by the Preferred Guarantee
Trustee for the benefit of the holders of the Preferred Securities of the
applicable PLC Capital Trust.
GENERAL
Pursuant to each Preferred Securities Guarantee, the Company will
irrevocably and unconditionally agree, to the extent set forth therein, to pay
in full, to the holders of the Preferred Securities issued by a PLC Capital
Trust, the Guarantee Payments (as defined herein) (except to the extent paid by
such PLC Capital Trust), as and when due, regardless of any defense, right of
set-off or counterclaim which such PLC Capital Trust may have or assert. The
following payments or distributions with respect to Preferred Securities issued
by a PLC Capital Trust to the extent not paid by such PLC Capital Trust (the
"Guarantee Payments"), will be subject to the Preferred Securities Guarantee
thereon (without duplication): (i) any accrued and unpaid distributions which
are required to be paid on such Preferred Securities, to the extent such PLC
Capital Trust shall have funds available therefor; (ii) the redemption price,
and all accrued and unpaid distributions to the date of redemption (the
"Redemption Price") to the extent such PLC Capital Trust has funds available
therefor with respect to any Preferred Securities called for redemption by such
PLC Capital Trust and (iii) upon a voluntary or involuntary dissolution,
winding-up or termination of such PLC Capital Trust (other than in connection
with the distribution of Subordinated Debt Securities to the holders of
Preferred Securities or the redemption of all of the Preferred Securities), the
lesser of (a) the aggregate of the liquidation amount and all accrued and unpaid
distributions on such Preferred Securities to the date of payment, to the extent
such PLC Capital Trust has funds available therefor and (b) the amount of assets
of such PLC Capital Trust remaining available for distribution to holders of
such Preferred Securities in liquidation of such PLC Capital Trust. The
Company's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Company to the holders of Preferred
Securities or by causing the applicable PLC Capital Trust to pay such amounts to
such holders.
Each Preferred Securities Guarantee will be a guarantee with respect to the
Preferred Securities issued by the applicable PLC Capital Trust, but will not
apply to any payment of distributions except to the extent such PLC Capital
Trust shall have funds available therefor. If the Company does not make interest
payments on the Subordinated Debt Securities purchased by a PLC Capital Trust,
such PLC Capital Trust will not pay distributions on the Preferred Securities
issued by such PLC Capital Trust and will not have funds available therefor. The
Preferred Securities Guarantee, when taken together with Protective Life's
obligations under the Subordinated Debt Securities, the Subordinated Debt
Securities Indenture, and the Declaration will provide a full and unconditional
guarantee on a subordinated basis by the Company of payments due on the
Preferred Securities.
The Company will also agree separately, through the Common Guarantees, to
irrevocably and unconditionally guarantee the obligations of the PLC Capital
Trusts with respect to the Common Securities to the same extent as the Preferred
Securities Guarantees, except that upon an event of default under the
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<PAGE>
Subordinated Debt Securities Indenture, holders of Preferred Securities shall
have priority over holders of Common Securities with respect to distributions
and payments on liquidation, redemption or otherwise.
CERTAIN COVENANTS OF THE COMPANY
In each Preferred Securities Guarantee, the Company will covenant that, so
long as any Preferred Securities issued by the applicable PLC Capital Trust
remain outstanding, if there shall have occurred any event that would constitute
an event of default under such Preferred Securities Guarantee or the Declaration
of such PLC Capital Trust, then (a) the Company shall not declare or pay any
dividend on, make any distributions with respect to, or redeem, purchase or make
a liquidation payment with respect to, any of its capital stock (other than (i)
purchases or acquisitions of shares of its common stock in connection with the
satisfaction by Protective Life of its obligations under any employee benefit
plans or the satisfaction by the Company of its obligation pursuant to any
contract or security requiring it to purchase shares of its common stock, (ii)
as a result of a reclassification of its capital stock or the exchange or
conversion of one class or series of Protective Life capital stock for another
class or series of Protective Life capital stock, (iii) the purchase of
fractional interests in shares of Protective Life capital stock pursuant to an
acquisition or the conversion or exchange provisions of such Protective Life
capital stock or the security being converted or exchanged and (iv) redemptions
or purchases pursuant to Protective Life's Rights Agreement, dated August 7,
1995, between Protective Life and AmSouth Bank as Rights Agent), (b) the Company
shall not make any payment of interest, principal or premium, if any, on or
repay, repurchase or redeem any debt securities (including guarantees) issued by
the Company which rank PARI PASSU with or junior to Subordinated Debt Securities
and (c) the Company shall not make any guarantee payments with respect to the
foregoing (other than pursuant to a Preferred Securities Guarantee, a Common
Guarantee, the 8 1/4% TOPrS Guarantees and the Series A Guarantee.
MODIFICATION OF THE PREFERRED SECURITIES GUARANTEES; ASSIGNMENT
Except with respect to any changes which do not adversely affect the rights
of holders of Preferred Securities (in which case no vote will be required),
each Preferred Securities Guarantee may be amended only with the prior approval
of the holders of not less than a majority in liquidation amount of the
outstanding Preferred Securities issued by the applicable PLC Capital Trust. All
guarantees and agreements contained in a Preferred Securities Guarantee shall
bind the successors, assigns, receivers, trustees and representatives of the
Company and shall inure to the benefit of the holders of the Preferred
Securities of the applicable PLC Capital Trust then outstanding.
TERMINATION
Each Preferred Securities Guarantee will terminate as to the Preferred
Securities issued by the applicable PLC Capital Trust (a) upon full payment of
the Redemption Price of all Preferred Securities of such PLC Capital Trust, (b)
upon distribution of the Subordinated Debt Securities held by such PLC Capital
Trust to the holders of the Preferred Securities of such PLC Capital Trust or
(c) upon full payment of the amounts payable in accordance with the Declaration
of such PLC Capital Trust upon liquidation of such PLC Capital Trust. Each
Preferred Securities Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any holder of Preferred
Securities issued by the applicable PLC Capital Trust must restore payment of
any sums paid under such Preferred Securities or such Preferred Securities
Guarantee.
EVENTS OF DEFAULT
An event of default under a Preferred Securities Guarantee will occur upon
the failure of the Company to perform any of its payment or other obligations
thereunder.
29
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The holders of a majority in liquidation amount of the Preferred Securities
to which such Preferred Securities Guarantee relates have the right to direct
the time, method and place of conducting any proceeding for any remedy available
to the Preferred Guarantee Trustee in respect of the Preferred Securities
Guarantee or to direct the exercise of any trust or power conferred upon the
Preferred Guarantee Trustee under such Preferred Securities Guarantee. If the
Preferred Guarantee Trustee fails to enforce such Preferred Securities
Guarantee, any holder of Preferred Securities to which such Preferred Securities
Guarantee relates may institute a legal proceeding directly against the Company
to enforce such holder's rights under such Preferred Securities Guarantee,
without first instituting a legal proceeding against the relevant PLC Capital
Trust, the Preferred Guarantee Trustee or any other person or entity.
Notwithstanding the foregoing, if the Company has failed to make a guarantee
payment, a holder of Preferred Securities may directly institute a proceeding
against the Company for enforcement of the Preferred Securities Guarantee for
such payment. The Company waives any right or remedy to require that any action
be brought first against such PLC Capital Trust or any other person or entity
before proceeding directly against the Company.
STATUS OF THE PREFERRED SECURITIES GUARANTEES
The Preferred Securities Guarantees will constitute unsecured obligations of
the Company and will rank (i) subordinate and junior in right of payment to all
present and future Senior Indebtedness (as such term is defined in the
Subordinated Indenture), (ii) PARI PASSU with the Common Guarantees, the
Subordinated Debt Securities, the Series A Guarantee, the Series A Subordinated
Debentures, the 8 1/4% TOPrS Guarantees, the Series B Subordinated Debentures
and any other liabilities or obligations that may be PARI PASSU by their terms
and (iii) senior to the Company's common stock, the most senior preferred or
preference stock now or hereafter issued by the Company and with any guarantee
now or hereafter entered into by Protective Life in respect to any preferred or
preference stock of any affiliate of the Company. The terms of the Preferred
Securities provide that each holder of Preferred Securities issued by the
applicable PLC Capital Trust by acceptance thereof agrees to the subordination
provisions and other terms of the Preferred Securities Guarantee relating
thereto.
The Preferred Securities Guarantees will constitute a guarantee of payment
and not of collection (that is, the guaranteed party may institute a legal
proceeding directly against the guarantor to enforce its rights under the
guarantee without instituting a legal proceeding against any other person or
entity).
INFORMATION CONCERNING THE PREFERRED GUARANTEE TRUSTEE
The Preferred Guarantee Trustee, prior to the occurrence of a default with
respect to a Preferred Securities Guarantee, undertakes to perform only such
duties as are specifically set forth in such Preferred Securities Guarantee and,
after default, shall exercise the same degree of care as a prudent individual
would exercise in the conduct of his or her own affairs. Subject to such
provisions, the Preferred Guarantee Trustee is under no obligation to exercise
any of the powers vested in it by a Preferred Securities Guarantee at the
request of any holder of Preferred Securities, unless offered reasonable
indemnity against the costs, expenses and liabilities which might be incurred
thereby; but the foregoing shall not relieve the Preferred Guarantee Trustee,
upon the occurrence of an event of default under such Preferred Securities
Guarantee, from exercising the rights and powers vested in it by such Preferred
Securities Guarantee.
GOVERNING LAW
The Preferred Securities Guarantees will be governed by and construed in
accordance with the internal laws of the State of New York.
30
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EFFECT OF OBLIGATIONS UNDER THE SUBORDINATED DEBT SECURITIES
AND THE PREFERRED SECURITIES GUARANTEES
As set forth in the Declarations, the sole purpose of the PLC Capital Trusts
is to issue the Trust Securities evidencing undivided beneficial interests in
the assets of each of the PLC Capital Trusts, and to invest the proceeds from
such issuance and sale in Subordinated Debt Securities.
As long as payments of interest and other payments are made when due on the
Subordinated Debt Securities held by the PLC Capital Trusts, such payments will
be sufficient to cover distributions and payments due on the Trust Securities
because of the following factors: (i) the aggregate principal amount of such
Subordinated Debt Securities will be equal to the sum of the aggregate stated
liquidation amount of the Trust Securities; (ii) the interest rate and the
interest and other payment dates on such Subordinated Debt Securities will match
the distribution rate and distribution and other payment dates for the Preferred
Securities; (iii) Protective Life shall pay all, and the PLC Capital Trusts
shall not be obligated to pay, directly or indirectly, all costs, expenses,
debt, and obligations of PLC Capital (other than with respect to the Trust
Securities); and (iv) the Declaration further provides that the PLC Capital
Trustees shall not take or cause or permit the PLC Capital Trusts to, among
other things, engage in any activity that is not consistent with the purposes of
the applicable PLC Capital Trust.
Payments of distributions (to the extent funds therefore are available) and
other payments due on the Preferred Securities (to the extent funds therefore
are available) are guaranteed by Protective Life as and to the extent set forth
under "Description of Preferred Securities Guarantees." If Protective Life does
not make interest payments on the Subordinated Debt Securities purchased by the
applicable PLC Capital Trust, it is expected that the applicable PLC Capital
Trust will not have sufficient funds to pay distributions on the Preferred
Securities and the Preferred Securities Guarantee will not apply, since the
Preferred Securities Guarantee covers the payment of distributions and other
payments on the Preferred Securities only if and to the extent that Protective
Life has made a payment of interest or principal on the Subordinated Debt
Securities held by the applicable PLC Capital Trust as its sole asset. However,
the Preferred Securities Guarantee, when taken together with the Company's
obligations under the Subordinated Debt Securities and the Subordinated
Indenture and its obligations under the Declaration, including its obligations
to pay costs, expenses, debts and liabilities of PLC Capital (other than with
respect to the Trust Securities), provide a full and unconditional guarantee, on
a subordinated basis, by the Company of amounts due on the Preferred Securities.
If Protective Life fails to make interest or other payments on the
Subordinated Debt Securities when due (taking account of any Extension Period),
the Declarations provide a mechanism whereby the holders of the Preferred
Securities affected thereby, using the procedures described in any accompanying
Prospectus Supplement, may direct the Property Trustee to enforce its rights
under the Subordinated Debt Securities. If a Debt Payment Failure has occurred
and is continuing, a holder of Preferred Securities may institute a Direct
Action for payment after the respective due date specified in the Subordinated
Debt Securities. In connection with such Direct Action, Protective Life will be
subrogated to the rights of such holder of Preferred Securities under the
Declaration to the extent of any payment made by Protective Life to such holder
of Preferred Securities in such Direct Action. Protective Life, under the
Preferred Securities Guarantee, acknowledges that the Guarantee Trustee shall
enforce the Preferred Securities Guarantee on behalf of the holders of the
Preferred Securities. If Protective Life fails to make payments under the
Preferred Securities Guarantee, the Preferred Securities Guarantee provides a
mechanism whereby the holders of the Preferred Securities may direct the
Preferred Securities Guarantee Trustee to enforce its rights thereunder. Any
holder of Preferred Securities may institute a legal proceeding directly against
Protective Life to enforce the Preferred Securities Guarantee Trustee's rights
under the Preferred Securities Guarantee without first instituting a legal
proceeding against PLC Capital, the Preferred Securities Guarantee Trustee, or
any other person or entity.
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Protective Life and each of the PLC Capital Trusts believe that the above
mechanisms and obligations, taken together, provide a full and unconditional
guarantee by Protective Life on a subordinated basis of payments due on the
Preferred Securities. See "Description of the Preferred Securities Guarantee--
General."
DESCRIPTION OF STOCK PURCHASE CONTRACTS
AND STOCK PURCHASE UNITS
Protective Life may issue Stock Purchase Contracts, representing contracts
obligating holders to purchase from the Company, and the Company to sell to the
holders, a specified number of shares of Common Stock at a future date or dates.
The price per share of Common Stock may be fixed at the time the Stock Purchase
Contracts are issued or may be determined by reference to a specific formula set
forth in the Stock Purchase Contracts. The Stock Purchase Contracts may be
issued separately or as a part of Stock Purchase Units consisting of a Stock
Purchase Contract and Debt Securities or Preferred Securities or debt
obligations of third parties, including U.S. Treasury Securities, securing the
holders' obligations to purchase the Common Stock under the Purchase Contracts.
The Stock Purchase Contracts may require Protective Life to make periodic
payments to the holders of the Stock Purchase Units or vice versa, and such
payments may be unsecured or refunded on some basis. The Stock Purchase
Contracts may require holders to secure their obligations thereunder in a
specified manner.
The applicable Prospectus Supplement will describe the terms of any Stock
Purchase Contracts or Stock Purchase Units. The description in the Prospectus
Supplement will not purport to be complete and will be qualified in its entirety
by reference to the Stock Purchase Contracts, and, if applicable, collateral
arrangements and depositary arrangements, relating to such Stock Purchase
Contracts or Stock Purchase Units.
PLAN OF DISTRIBUTION
Protective Life may sell any of the Debt Securities, Preferred Stock, Common
Stock, Stock Purchase Contracts and Stock Purchase Units and the PLC Capital
Trusts may sell any of the 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 the PLC Capital Trusts, 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 the PLC Capital Trusts, 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 the PLC Capital Trusts 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 the PLC Capital Trusts 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
32
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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 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 the PLC Capital Trusts,
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 the PLC Capital Trusts, as the case may be, and the sale
thereof may be made by Protective Life or the PLC Capital Trusts, 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
with Protective Life and/ or the PLC Capital Trusts to indemnification by
Protective Life and/or the PLC Capital Trusts against certain liabilities,
including liabilities under the Securities Act, or to any contribution with
respect to payments which such agents, underwriters and dealers may be required
to make in respect thereof.
Each series of Offered Securities will be a new issue with no established
trading market, other than the Common Stock which is listed on the New York
Stock Exchange. Any Common Stock sold pursuant to a Prospectus Supplement will
be listed on such exchange, subject to official notice of issuance. Protective
Life may elect to list any series of Debt Securities, Preferred Stock, Stock
Purchase Contracts or Stock Purchase Units and the PLC Capital Trusts may elect
to list any series of Preferred Securities, on an exchange, but neither
Protective Life, nor the PLC Capital Trusts shall be obligated to do so. It is
possible that one or more underwriters may make a market in a series of Offered
Securities, but will not be obligated to do so and may discontinue any market
making at any time without notice. Therefore, no assurance can be given as to
the liquidity of the trading market for the Offered Securities.
Agents, underwriters and dealers may be customers of, engage in transactions
with, or perform services for, Protective Life and its subsidiaries (including
the PLC Capital Trusts) 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 the PLC Capital Trusts, as the case
may be. Any remarketing firm will be identified and the terms of its agreement,
if any, with Protective Life or the PLC Capital Trusts 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 the PLC Capital Trusts
against certain civil liabilities, including liabilities under the Securities
Act, and may be
33
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customers of, engage in transactions with or perform services for Protective
Life and its subsidiaries (including the PLC Capital Trusts) in the ordinary
course of business.
If so indicated in the applicable Prospectus Supplement, Protective Life or
the PLC Capital Trusts, 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 the PLC Capital Trusts, 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 MATTERS
Unless otherwise indicated in the applicable Prospectus Supplement, certain
matters of Delaware law relating to the validity of the Preferred Securities of
the PLC Capital Trusts will be passed upon for the Company and the PLC Capital
Trusts by Richards, Layton & Finger, P.A., special Delaware counsel to the
Company and the PLC Capital Trusts, and the validity of any other Offered
Securities offered hereby and of the Preferred Securities Guarantee and the
Senior Debt Securities relating to any Preferred Securities of the PLC Capital
Trusts offered hereby will be passed upon for Protective Life and the PLC
Capital Trusts by Debevoise & Plimpton. Debevoise & Plimpton may rely upon
Richards, Layton & Finger, P.A., special Delaware counsel to Protective Life and
the PLC Capital Trusts, as to all matters of Delaware law relating to any
Preferred Securities.
EXPERTS
The consolidated balance sheets of Protective Life as of December 31, 1996
and 1995 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, 1996
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, 1996 and which have been incorporated by reference in
this Prospectus, have been incorporated herein in reliance on the report of
Coopers & Lybrand L.L.P., independent accountants, given on the authority of
that firm as experts in accounting and auditing.
With respect to the unaudited interim financial information for Protective
Life and subsidiaries for the three-month periods ended March 31, 1997 and 1996
incorporated by reference in this Prospectus, the independent accountants have
reported that they have applied limited procedures in accordance with
professional standards for a review of such information. However, their separate
report included in the Registration Statement of which this Prospectus forms a
part states that they did not audit and they do not express an opinion on such
interim financial information. Accordingly, the degree of reliance on their
report on such information should be restricted in light of the limited nature
of the review procedures applied. The accountants are not subject to the
liability provisions of Section 11 of the Securities Act of 1933 for their
report on the unaudited interim financial information because that report is not
a "report" or a "part" of the Registration Statement prepared or certified by
the accountants within the meaning of Sections 7 and 11 of the Act.
34
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NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS IN
CONNECTION WITH THE OFFER MADE BY THIS PROSPECTUS SUPPLEMENT AND THE PROSPECTUS
AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED BY PROTECTIVE LIFE CORPORATION, PLC CAPITAL TRUST
II OR THE UNDERWRITERS. NEITHER THE DELIVERY OF THIS PROSPECTUS SUPPLEMENT AND
THE PROSPECTUS, NOR ANY SALE MADE HEREUNDER AND THEREUNDER, SHALL UNDER ANY
CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF PROTECTIVE LIFE CORPORATION OR PLC CAPITAL TRUST II SINCE THE DATE
HEREOF. THIS PROSPECTUS SUPPLEMENT AND THE PROSPECTUS SHALL NOT CONSTITUTE AN
OFFER OR SOLICITATION BY ANYONE IN ANY STATE IN WHICH SUCH OFFER OR SOLICITATION
IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS
NOT QUALIFIED TO DO SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION.
------------------------------
TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
<TABLE>
<CAPTION>
PAGE
---------
<S> <C>
Company Overview................................. S-4
Risk Factors..................................... S-4
Protective Life Corporation...................... S-10
PLC Capital...................................... S-15
Selected Financial Information of the Company.... S-17
Consolidated Earnings Ratios..................... S-18
Capitalization of Protective Life................ S-19
Accounting Treatment............................. S-20
Use of Proceeds.................................. S-20
Description of the Preferred Securities.......... S-21
Description of the Preferred Securities
Guarantee...................................... S-32
Description of the Subordinated Debt
Securities..................................... S-32
Effect of Obligations Under the Subordinated Debt
Securities and the Preferred Securities
Guarantee...................................... S-40
Certain Federal Income Tax Considerations........ S-41
Underwriting..................................... S-44
Legal Matters.................................... S-45
PROSPECTUS
Available Information............................ 4
Incorporation of Certain Documents by
Reference...................................... 5
Protective Life Corporation...................... 6
The PLC Capital Trusts........................... 7
Use of Proceeds.................................. 7
Consolidated Earnings Ratios..................... 8
Description of Debt Securities of Protective
Life........................................... 9
Description of Capital Stock of Protective
Life........................................... 19
Description of Preferred Stock of Protective
Life........................................... 19
Description of Common Stock of Protective Life... 19
Description of Preferred Securities of the PLC
Capital Trust.................................. 25
Description of the Preferred Securities
Guarantees..................................... 28
Effect of Obligations Under the Subordinated Debt
Securities and the Preferred Securities
Guarantees..................................... 31
Description of Stock Purchase Contracts and Stock
Purchase Units................................. 32
Plan of Distribution............................. 32
Legal Matters.................................... 34
Experts.......................................... 34
</TABLE>
PREFERRED SECURITIES
PLC CAPITAL TRUST II
% TRUST ORIGINATED
PREFERRED SECURITIES (-SM-)
("TOPRS(-SM-)")
GUARANTEED TO THE EXTENT
SET FORTH HEREIN BY
PROTECTIVE LIFE CORPORATION
----------------
PROSPECTUS SUPPLEMENT
------------------------
MERRILL LYNCH & CO.
, 1997
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- ------------------------------------------------
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth those expenses to be incurred by Protective
Life in connection with the issuance and distribution of the securities being
registered. Except for the Securities and Exchange Commission filing fee, all
amounts shown are estimates.
<TABLE>
<S> <C>
Securities and Exchange Commission filing fee..................... $ 60,607
Rating agency fees................................................ 75,000
Fees and expenses of Trustees..................................... 12,500
Blue Sky fees and expenses........................................ 15,000
Printing and engraving expenses................................... 86,000
Accountant's fees and expenses.................................... 30,000
Legal fees and expenses........................................... 75,000
Miscellaneous expenses............................................ 25,000
---------
Total......................................................... $ 379,107
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---------
</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, trust or other enterprise including
service with respect to employee benefit plans.
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
II-1
<PAGE>
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 acts or omissions not in good faith which
involve intentional misconduct or a knowing violation 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.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- --------- --------------------------------------------------------------------------------------------------------
<S> <C>
1(a) Form of underwriting agreement for offering of Preferred Securities*
1(b) Form of underwriting agreement for offering of Senior Debt Securities*
1(c) Form of underwriting agreement for offering of Subordinated Debt Securities*
1(d) Form of underwriting agreement for offering of Common Stock*
1(e) Form of underwriting agreement for offering of Stock Purchase Contracts*
1(f) Form of underwriting agreement for offering of Stock Purchase Units*
4(a)(1) 1985 Restated Certificate of Incorporation of Protective Life (incorporated by reference to Exhibit 3(a)
to Protective Life's Form 10-K Annual Report for the year ended December 31, 1993).
4(a)(2) Certificate of Amendment of 1985 Restated Certificate of Incorporation of Protective Life filed with the
Secretary of State of Delaware on June 1, 1987 (incorporated by reference to Exhibit 3(a)(1) to
Protective Life's Form 10-K Annual Report for the year ended December 31, 1993).
4(a)(3) Certificate of Amendment of 1985 Restated Certificate of Incorporation of Protective Life filed with the
Secretary of State of Delaware on May 5, 1994 (incorporated by reference to Exhibit 3(a)(5) to
Protective Life's Form 10-Q Quarterly Report for the period ended March 31, 1994).
4(a)(4) Certificate of Designation of Junior Participating Cumulative Preferred Stock of Protective Life filed
with the Secretary of State of Delaware on August 9, 1995 (incorporated by reference to Exhibit A to
Exhibit 1 to the Company's Form 8-A Report filed on August 7, 1995).
4(a)(5) Certificate of Decrease of Shares Designated as Junior Participating Cumulative Preferred Stock of
Protective Life filed with the Secretary of State of Delaware on August 8, 1995 (incorporated by
reference to Exhibit 3(a)(4) to Protective Life's Form 10-K Annual Report for the year ended December
31, 1995).
4(b) By-Laws of Protective Life, as amended (incorporated by reference to Exhibit 3(b) to Protective Life's
Form 10-K Annual Report for the period ended December 31, 1996).
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- --------- --------------------------------------------------------------------------------------------------------
<S> <C>
4(c) Senior Indenture, dated as of June 1, 1994, between Protective Life and The Bank of New York, as Trustee
(incorporated by reference to Exhibit 4(g) to Protective Life's Registration Statement on Form S-3 (No.
33-52831)).
4(d) Supplemental Indenture No. 1, dated as of July 1, 1994, between Protective Life and The Bank of New
York, as Trustee (incorporated by reference to Exhibit 4(g) to Protective Life's Current Report on Form
8-K filed July 5, 1994).
4(e) Supplemental Indenture No. 2, dated as of August 1, 1996, between Protective Life and The Bank of New
York, as Trustee (incorporated by reference to Exhibit 4(g)(2) to Protective Life's Current Report on
Form 8-K filed August 8, 1996).
4(f) Supplemental Indenture No. 3, dated as of September 15, 1996, between Protective Life and The Bank of
New York, as Trustee (incorporated by reference to Exhibit 4(g)(3) to Protective Life's Current Report
on Form 8-K filed September 21, 1996).
4(g) Supplemental Indenture No. 4, dated as of November 15, 1996, between Protective Life and The Bank of New
York, as Trustee (incorporated by reference to Exhibit 4(g)(3) to Protective Life's Current Report on
Form 8-K filed November 22, 1996).
4(h) Supplemental Indenture No. 5, dated as of December 1, 1996, between Protective Life and The Bank of New
York, as Trustee (incorporated by reference to Exhibit 4(g)(3) to Protective Life's Current Report on
Form 8-K filed December 6, 1996).
4(i) Subordinated Indenture, dated as of June 1, 1994, between Protective Life and AmSouth Bank, as Trustee
(incorporated by reference to Exhibit 4(h) to Protective Life's Current Report on Form 8-K filed June
17, 1994).
4(j) Supplemental Indenture No. 1, dated as of June 9, 1994, to the Subordinated Indenture between Protective
Life and AmSouth Bank, as Trustee (incorporated by reference to Exhibit 4(h)(1) to Protective Life's
Current Report on Form 8-K filed June 17, 1994).
4(k) Supplemental Indenture No. 2, dated as of August 1, 1994, to the Subordinated Indenture between
Protective Life and AmSouth Bank, as Trustee (incorporated by reference to Exhibit 4(l) to Protective
Life's Registration Statement on Form S-3 (No. 33-55063)).
4(l) Supplemental Indenture No. 3 dated as of April 29, 1997 to the Subordinated Indenture between Protective
Life and AmSouth Bank, as Trustee (incorporated by reference to Exhibit 4(g) to Protective Life's
Registration Statement on Form S-3 (No. 333-25027)).
4(m) Form of Supplemental Indenture to Subordinated Indenture to be used in connection with the issuance of
Subordinated Debt Securities related to PLC Capital Trust II.**
4(n) Form of Supplemental Indenture to Subordinated Indenture to be used in connection with issuance of
Subordinated Debt Securities related to PLC Capital Trust III.**
4(o) Form of Supplemental Indenture to Subordinated Indenture to be used in connection with issuance of
Subordinated Debt Securities related to PLC Capital Trust IV.**
4(p) Form of Preferred Security (included in Exhibit 4(gg)).
4(q) Form of Preferred Security (included in Exhibit 4(hh)).
4(r) Form of Preferred Security (included in Exhibit 4(ii)).
4(s) Form of Subordinated Debt Security relating to PLC Capital Trust II (included in Exhibit 4(m)).
4(t) Form of Subordinated Debt Security relating to PLC Capital Trust III (included in Exhibit 4(n)).
4(u) Form of Subordinated Debt Security relating to PLC Capital Trust IV (included in Exhibit 4(o)).
4(v) Form of Guarantee Agreement with respect to Preferred Securities to be issued by PLC Capital Trust II.**
4(w) Form of Guarantee Agreement with respect to Preferred Securities to be issued by PLC Capital Trust
III.**
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- --------- --------------------------------------------------------------------------------------------------------
<S> <C>
4(x) Form of Guarantee Agreement with respect to Preferred Securities to be issued by PLC Capital Trust IV.**
4(y) Form of Purchase Contract Agreement (including form of related security certificate).*
4(z) Form of Pledge Agreement.*
4(aa) Certificate of Trust of PLC Capital Trust II.**
4(bb) Certificate of Trust of PLC Capital Trust III.**
4(cc) Certificate of Trust of PLC Capital Trust IV.**
4(dd) Declaration of Trust of PLC Capital Trust II.**
4(ee) Declaration of Trust of PLC Capital Trust III.**
4(ff) Declaration of Trust of PLC Capital Trust IV.**
4(gg) Form of Amended and Restated Declaration of Trust of PLC Capital Trust II.**
4(hh) Form of Amended and Restated Declaration of Trust of PLC Capital Trust III.**
4(ii) Form of Amended and Restated Declaration of Trust of PLC Capital Trust IV.**
4(jj) Rights Agreement, dated as of August 7, 1995 among Protective Life and AmSouth Bank, as Rights Agent
(incorporated by reference to Exhibit 1 to the Company's Form 8-A filed August 7, 1995).
4(kk) Rights Certificate (incorporated by reference to Exhibit 1 to the Company's Form 8-A filed August 7,
1995).
5(a) Opinion of Debevoise & Plimpton, counsel to Protective Life and the PLC Capital Trusts, as to the
validity of certain of the Offered Securities.**
5(b) Opinion of Richards, Layton & Finger, P.A., special Delaware counsel to Protective Life and the PLC
Capital Trusts, as to legality of certain Offered Securities.**
8 Opinion of Debevoise & Plimpton, as to certain tax matters**
12 Computation of Ratios of Consolidated Earnings to Fixed Charges**
23(a) Consent of Coopers & Lybrand L.L.P.**
23(b) Consent of Debevoise & Plimpton (included in Exhibits 5(a) and 8)
23(c) Consent of Richards, Layton & Finger, P.A. (included in Exhibit 5(b))
24 Power of Attorney of Board of Directors and Officers.**
25(a) Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York, as
Trustee under the Senior Indenture.**
25(b) Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of AmSouth Bank of Alabama,
as Trustee under the Subordinated Indenture.**
25(c) Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Wilmington Trust Company
as Trustee of the Preferred Securities Guarantee of Protective Life for the benefit of the holders of
the Preferred Securities of PLC Capital Trust II.**
25(d) Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Wilmington Trust Company
as Trustee of the Preferred Securities Guarantee of Protective Life for the benefit of the holders of
Preferred Securities of PLC Capital Trust III.**
25(e) Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Wilmington Trust Company
as Trustee of the Preferred Securities Guarantee of Protective Life for the benefit of the holders of
the Preferred Securities of PLC Capital Trust IV.**
25(f) Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Wilmington Trust Company
as Trustee under the Amended and Restated Declaration of Trust of PLC Capital Trust II.**
25(g) Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Wilmington Trust Company
as Trustee under the Amended and Restated Declaration of Trust of PLC Capital Trust III.**
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- --------- --------------------------------------------------------------------------------------------------------
<S> <C>
25(h) Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Wilmington Trust Company
as Trustee under the Amended and Restated Declaration of Trust of PLC Capital Trust IV.**
</TABLE>
- ------------------------
* Indicates document to be filed as an exhibit to a subsequent report on Form
8-K or Form 10-Q and incorporated herein by reference
** Indicates document filed herewith.
*** Indicates document to be filed by amendment.
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. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective 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 (a)(1)(i) and (a)(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.
II-5
<PAGE>
(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
Protective Life'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.
(c) 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 Registrants pursuant to the foregoing provisions, or otherwise, the
registrants have 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 a registrant of expenses
incurred or paid by a director, officer or controlling person, if any, of such
registrant 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, such 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-6
<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 July 8, 1997.
PROTECTIVE LIFE CORPORATION
(Registrant)
By: /s/ JOHN D. JOHNS
-----------------------------------------
Name: John D. Johns
Title: President, Chief Operating
Officer and Director
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 on the dates indicated:
SIGNATURES TITLE DATE
- ------------------------------ --------------------------- -------------------
Chairman of the Board, July 8, 1997
* Chief Executive Officer
- ------------------------------ and Director (Principal
Drayton Nabers, Jr. Executive Officer)
President, Chief Operating July 8, 1997
/s/ JOHN D. JOHNS Officer and Director
- ------------------------------ (Principal Financial
John D. Johns Officer)
Vice President and July 8, 1997
/s/ JERRY W. DEFOOR Controller and Chief
- ------------------------------ Accounting Officer
Jerry W. DeFoor (Principal Accounting
Officer)
* Chairman Emeritus and
- ------------------------------ Director
William J. Rushton III
* Director
- ------------------------------
John W. Woods
* Director
- ------------------------------
William J. Cabaniss, Jr.
* Director
- ------------------------------
John J. McMahon, Jr.
II-7
<PAGE>
SIGNATURES TITLE DATE
- ------------------------------ --------------------------- -------------------
* Director
- ------------------------------
A.W. Dahlberg
* Director
- ------------------------------
John W. Rouse, Jr.
* Director
- ------------------------------
Robert T. David
* Director
- ------------------------------
Ronald L. Kuehn, Jr.
* Director
- ------------------------------
Herbert A. Sklenar
* Director
- ------------------------------
James S.M. French
* Director
- ------------------------------
Robert A. Yellowlees
*By: /s/ DEBORAH J. LONG July 8, 1997
--------------------------------------
Name: Deborah J. Long
Title: Attorney-in-Fact
II-8
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, PLC Capital
Trust II 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 July 8, 1997.
PLC CAPITAL TRUST II
(Registrant)
By: /s/ RICHARD J. BIELEN
-----------------------------------------
Name: Richard J. Bielen
Title: Regular Trustee
By: /s/ JERRY W. DEFOOR
-----------------------------------------
Name: Jerry W. DeFoor
Title: Regular Trustee
II-9
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, PLC Capital
Trust III 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 July 8, 1997.
PLC CAPITAL TRUST III
(Registrant)
By: /s/ RICHARD J. BIELEN
-----------------------------------------
Name: Richard J. Bielen
Title: Regular Trustee
By: /s/ JERRY W. DEFOOR
-----------------------------------------
Name: Jerry W. DeFoor
Title: Regular Trustee
II-10
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, PLC Capital
Trust IV 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 July 8, 1997.
PLC CAPITAL TRUST IV
(Registrant)
By: /s/ RICHARD J. BIELEN
-----------------------------------------
Name: Richard J. Bielen
Title: Regular Trustee
By: /s/ JERRY W. DEFOOR
-----------------------------------------
Name: Jerry W. DeFoor
Title: Regular Trustee
II-11
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION PAGE
- --------- ------------------------------------------------------------------------------------------------ ---------
<S> <C> <C>
1(a) Form of underwriting agreement for offering of Preferred Securities*
1(b) Form of underwriting agreement for offering of Senior Debt Securities*
1(c) Form of underwriting agreement for offering of Subordinated Debt Securities*
1(d) Form of underwriting agreement for offering of Common Stock*
1(e) Form of underwriting agreement for offering of Stock Purchase Contracts*
1(f) Form of underwriting agreement for offering of Stock Purchase Units*
4(a)(1) 1985 Restated Certificate of Incorporation of Protective Life (incorporated by reference to
Exhibit 3(a) to Protective Life's Form 10-K Annual Report for the year ended December 31, 1993).
4(a)(2) Certificate of Amendment of 1985 Restated Certificate of Incorporation of Protective Life filed
with the Secretary of State of Delaware on June 1, 1987 (incorporated by reference to Exhibit
3(a)(1) to Protective Life's Form 10-K Annual Report for the year ended December 31, 1993).
4(a)(3) Certificate of Amendment of 1985 Restated Certificate of Incorporation of Protective Life filed
with the Secretary of State of Delaware on May 5, 1994 (incorporated by reference to Exhibit
3(a)(5) to Protective Life's Form 10-Q Quarterly Report for the period ended March 31, 1994).
4(a)(4) Certificate of Designation of Junior Participating Cumulative Preferred Stock of Protective Life
filed with the Secretary of State of Delaware on August 9, 1995 (incorporated by reference to
Exhibit A to Exhibit 1 to the Company's Form 8-A Report filed on August 7, 1995).
4(a)(5) Certificate of Decrease of Shares Designated as Junior Participating Cumulative Preferred Stock
of Protective Life filed with the Secretary of State of Delaware on August 8, 1995 (incorporated
by reference to Exhibit 3(a)(4) to Protective Life's Form 10-K Annual Report for the year ended
December 31, 1995).
4(b) By-Laws of Protective Life, as amended (incorporated by reference to Exhibit 3(b) to Protective
Life's Form 10-K Annual Report for the period ended December 31, 1996).
4(c) Senior Indenture, dated as of June 1, 1994, between Protective Life and The Bank of New York, as
Trustee (incorporated by reference to Exhibit 4(g) to Protective Life's Registration Statement
on Form S-3 (No. 33-52831)).
4(d) Supplemental Indenture No. 1, dated as of July 1, 1994, between Protective Life and The Bank of
New York, as Trustee (incorporated by reference to Exhibit 4(g) to Protective Life's Current
Report on Form 8-K filed July 5, 1994).
4(e) Supplemental Indenture No. 2, dated as of August 1, 1996, between Protective Life and The Bank
of New York, as Trustee (incorporated by reference to Exhibit 4(g)(2) to Protective Life's
Current Report on Form 8-K filed August 8, 1996).
4(f) Supplemental Indenture No. 3, dated as of September 15, 1996, between Protective Life and The
Bank of New York, as Trustee (incorporated by reference to Exhibit 4(g)(3) to Protective Life's
Current Report on Form 8-K filed September 21, 1996).
</TABLE>
II-12
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION PAGE
- --------- ------------------------------------------------------------------------------------------------ ---------
<S> <C> <C>
4(g) Supplemental Indenture No. 4, dated as of November 15, 1996, between Protective Life and The
Bank of New York, as Trustee (incorporated by reference to Exhibit 4(g)(3) to Protective Life's
Current Report on Form 8-K filed November 22, 1996).
4(h) Supplemental Indenture No. 5, dated as of December 1, 1996, between Protective Life and The Bank
of New York, as Trustee (incorporated by reference to Exhibit 4(g)(3) to Protective Life's
Current Report on Form 8-K filed December 6, 1996).
4(i) Subordinated Indenture, dated as of June 1, 1994, between Protective Life and AmSouth Bank, as
Trustee (incorporated by reference to Exhibit 4(h) to Protective Life's Current Report on Form
8-K filed June 17, 1994).
4(j) Supplemental Indenture No. 1, dated as of June 9, 1994, to the Subordinated Indenture between
Protective Life and AmSouth Bank, as Trustee (incorporated by reference to Exhibit 4(h)(1) to
Protective Life's Current Report on Form 8-K filed June 17, 1994).
4(k) Supplemental Indenture No. 2, dated as of August 1, 1994, to the Subordinated Indenture between
Protective Life and AmSouth Bank, as Trustee (incorporated by reference to Exhibit 4(l) to
Protective Life's Registration Statement on Form S-3 (No. 33-55063)).
4(l) Supplemental Indenture No. 3 dated as of April 29, 1997 to the Subordinated Indenture between
Protective Life and AmSouth Bank, as Trustee (incorporated by reference to Exhibit 4(g) to
Protective Life's Registration Statement on Form S-3 (No. 333-25027)).
4(m) Form of Supplemental Indenture to Subordinated Indenture to be used in connection with the
issuance of Subordinated Debt Securities related to PLC Capital Trust II.**
4(n) Form of Supplemental Indenture to Subordinated Indenture to be used in connection with issuance
of Subordinated Debt Securities related to PLC Capital Trust III.**
4(o) Form of Supplemental Indenture to Subordinated Indenture to be used in connection with issuance
of Subordinated Debt Securities related to PLC Capital Trust IV.**
4(p) Form of Preferred Security (included in Exhibit 4(gg)).
4(q) Form of Preferred Security (included in Exhibit 4(hh)).
4(r) Form of Preferred Security (included in Exhibit 4(ii)).
4(s) Form of Subordinated Debt Security relating to PLC Capital Trust II (included in Exhibit 4(m)).
4(t) Form of Subordinated Debt Security relating to PLC Capital Trust III (included in Exhibit 4(n)).
4(u) Form of Subordinated Debt Security relating to PLC Capital Trust IV (included in Exhibit 4(o)).
4(v) Form of Guarantee Agreement with respect to Preferred Securities to be issued by PLC Capital
Trust II.**
4(w) Form of Guarantee Agreement with respect to Preferred Securities to be issued by PLC Capital
Trust III.**
4(x) Form of Guarantee Agreement with respect to Preferred Securities to be issued by PLC Capital
Trust IV.**
4(y) Form of Purchase Contract Agreement (including form of related security certificate).*
</TABLE>
II-13
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION PAGE
- --------- ------------------------------------------------------------------------------------------------ ---------
<S> <C> <C>
4(z) Form of Pledge Agreement.*
4(aa) Certificate of Trust of PLC Capital Trust II.**
4(bb) Certificate of Trust of PLC Capital Trust III.**
4(cc) Certificate of Trust of PLC Capital Trust IV.**
4(dd) Declaration of Trust of PLC Capital Trust II.**
4(ee) Declaration of Trust of PLC Capital Trust III.**
4(ff) Declaration of Trust of PLC Capital Trust IV.**
4(gg) Form of Amended and Restated Declaration of Trust of PLC Capital Trust II.**
4(hh) Form of Amended and Restated Declaration of Trust of PLC Capital Trust III.**
4(ii) Form of Amended and Restated Declaration of Trust of PLC Capital Trust IV.**
4(jj) Rights Agreement, dated as of August 7, 1995 among Protective Life and AmSouth Bank, as Rights
Agent (incorporated by reference to Exhibit 1 to the Company's Form 8-A filed August 7, 1995).
4(kk) Rights Certificate (incorporated by reference to Exhibit 1 to the Company's Form 8-A filed
August 7, 1995).
5(a) Opinion of Debevoise & Plimpton, counsel to Protective Life and the PLC Capital Trusts, as to
the validity of certain of the Offered Securities.**
5(b) Opinion of Richards, Layton & Finger, P.A., special Delaware counsel to Protective Life and the
PLC Capital Trusts, as to legality of certain Offered Securities.**
8 Opinion of Debevoise & Plimpton, as to certain tax matters**
12 Computation of Ratios of Consolidated Earnings to Fixed Charges**
23(a) Consent of Coopers & Lybrand L.L.P.**
23(b) Consent of Debevoise & Plimpton (included in Exhibits 5(a) and 8)
23(c) Consent of Richards, Layton & Finger, P.A. (included in Exhibit 5(b))
24 Power of Attorney of Board of Directors and Officers.**
25(a) Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New
York, as Trustee under the Senior Indenture.**
25(b) Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of AmSouth Bank of
Alabama, as Trustee under the Subordinated Indenture.**
25(c) Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Wilmington Trust
Company as Trustee of the Preferred Securities Guarantee of Protective Life for the benefit of
the holders of the Preferred Securities of PLC Capital Trust II.**
25(d) Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Wilmington Trust
Company as Trustee of the Preferred Securities Guarantee of Protective Life for the benefit of
the holders of Preferred Securities of PLC Capital Trust III.**
25(e) Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Wilmington Trust
Company as Trustee of the Preferred Securities Guarantee of Protective Life for the benefit of
the holders of the Preferred Securities of PLC Capital Trust IV.**
</TABLE>
II-14
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION PAGE
- --------- ------------------------------------------------------------------------------------------------ ---------
<S> <C> <C>
25(f) Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Wilmington Trust
Company as Trustee under the Amended and Restated Declaration of Trust of PLC Capital Trust
II.**
25(g) Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Wilmington Trust
Company as Trustee under the Amended and Restated Declaration of Trust of PLC Capital Trust
III.**
25(h) Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Wilmington Trust
Company as Trustee under the Amended and Restated Declaration of Trust of PLC Capital Trust
IV.**
</TABLE>
- ------------------------
* Indicates document to be filed as an exhibit to a subsequent report on Form
8-K or Form 10-Q and incorporated herein by reference
** Indicates document filed herewith.
*** Indicates document to be filed by amendment.
II-15
<PAGE>
EXHIBIT 4(m)
Draft--July 7, 1997
================================================================================
PROTECTIVE LIFE CORPORATION
to
AMSOUTH BANK
(as successor by merger to AmSouth
Bank of Alabama, successor by conversion of charter
to AmSouth Bank N.A.), as Trustee
--------------------
SUPPLEMENTAL INDENTURE No. 4
Dated as of __________, 199_
--------------------
___% Subordinated Debentures
Due 20__, Series _
$__________
================================================================================
<PAGE>
PROTECTIVE LIFE CORPORATION
SUPPLEMENTAL INDENTURE No. 4
$ __________
___% Subordinated Debentures
Due 20__, Series _
SUPPLEMENTAL INDENTURE No. 4, dated as of __________, 199_ from
PROTECTIVE LIFE CORPORATION, a Delaware corporation (the "Company"), to AMSOUTH
BANK (as successor by merger to AmSouth Bank of Alabama, successor by conversion
of charter to AmSouth Bank N.A.), as trustee (the "Trustee").
Recitals
The Company has heretofore executed and delivered to the Trustee a
Subordinated Indenture, dated as of June 1, 1994 as supplemented and amended by
Supplemental Indenture No. 1, dated as of June 9, 1994, Supplemental Indenture
No. 2, dated as of August 1, 1994 and Supplemental Indenture No. 3, dated as of
April 29, 1997 (as so supplemented and amended, the "Indenture"), providing for
the issuance from time to time of series of the Company's Securities.
Section 3.1 of the Indenture provides for various matters with
respect to any series of Securities issued under the Indenture to be established
in an indenture supplemental to the Indenture.
Section 8.1(7) of the Indenture provides for the Company and the
Trustee to enter into an indenture supplemental to the Indenture to establish
the form or terms of Securities of any series as provided by Sections 2.1 and
3.1 of the Indenture.
For and in consideration of the premises and the issuance of the
series of Securities provided for herein, it is mutually covenanted and agreed
as follows for the equal and ratable benefit of the Holders of the Securities of
such series:
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ARTICLE 1
Relation to Indenture; Definitions
Section 1.1. This Supplemental Indenture No. 4 constitutes an
integral part of the Indenture.
Section 1.2. For all purposes of this Supplemental Indenture No. 4:
(1) Capitalized terms used herein without definition shall have the
meanings specified in the Indenture;
(2) All references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this
Supplemental Indenture No. 4; and
(3) The terms "herein", "hereof", "hereunder" and other words of
similar import refer to this Supplemental Indenture No. 4.
ARTICLE 2
The Series of Securities
Section 2.1. Title of the Securities. There shall be a series of
Secu rities designated the "___% Subordinated Debentures Due 20__, Series _"
(hereinafter, the "Securities").
Section 2.2. Limitation on Aggregate Principal Amount; Date of
Securities. The aggregate principal amount of the Securities shall be limited to
$__________. Each Security shall be dated the date of its authentication.
Section 2.3. Principal Payment Dates. Subject to Section 2.6, the
principal amount of the Securities Outstanding (together with any accrued and
unpaid interest thereon) shall be payable in a single installment on __________,
20__.
Section 2.4. Interest and Interest Rates. The rate of interest on
each Security shall be ___% per annum, accruing from _________, 199_ and,
subject to Section 2.5, interest shall be payable, in arrears, on March 31, June
30, September 30
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and December 31 of each year (each an "Interest Payment Date"), commencing
__________, 199_. The amount of interest payable on any Interest Payment Date
shall be computed on the basis of twelve 30-day months and a 360-day year and,
for any period that is shorter than a full 90-day quarter, will be calculated on
the basis of the actual number of days elapsed in such period. In the event that
any date on which interest is payable on a Security is not a Business Day, then
payment of the interest payable on such date will be made on the next succeeding
day which is a Business Day (and without any interest or other payment in
respect of any such delay), except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date. The interest so payable on any Security which is punctually paid
or duly provided for on any Interest Payment Date shall be paid to the Person in
whose name such Security is registered at the close of business on the Regular
Record Date for such Interest Payment Date, which, for purposes of this
Supplemental Indenture No. 4, shall be the Business Day preceding such Interest
Payment Date; provided, that in the event the Securities shall not continue to
remain in book-entry only form, the record dates shall be the March 15, June 15,
September 15 and December 15 prior to the applicable Interest Payment Date. The
interest so payable on any Security which is not punctually paid or duly
provided for on any Interest Payment Date shall forthwith cease to be payable to
the Person in whose name such Security is registered on the relevant Regular
Record Date, and such defaulted interest shall instead be payable to the Person
in whose name such Security is registered on the special record date or other
specified date determined in accordance with the Indenture.
Section 2.5. Extension of Interest Payment Period. Notwithstanding
anything contained herein or in the Indenture to the contrary, the Company shall
have the right at any time, and from time to time, during the term of the
Securities to defer payments of interest by extending the interest payment
period to the next Interest Payment Date by one or more quarterly periods not
exceeding 20 consecutive quarters (each such period, an "Extension Period"), but
no such Extension Period may extend beyond __________, 20__, or such other date
to which the Stated Maturity may have been shortened or extended pursuant to
Section 2.6. At the end of any such Extension Period, the Company shall pay all
interest then accrued and unpaid (including any Additional Interest, as
hereinafter defined) together with interest thereon compounded quarterly at the
rate specified for the Securities to the extent permitted by applicable law
("Compound Interest"); provided, that during any such Extension Period, (a) the
Company shall not declare or pay dividends on, make any distribution with
respect to, or redeem, purchase, acquire or make a liquidation payment with
respect to any of its capital stock (other than (i) purchases or acquisitions of
shares of the Company's
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common stock in connection with the satisfaction by the Company of its
obligations under any employee benefit plans or the satisfaction by the Company
of its obligation pursuant to any contract or security requiring it to purchase
shares of its common stock, (ii) as a result of a reclassification of the
Company's capital stock or the exchange or conversion of one class or series of
the Company's capital stock for another class or series of its capital stock,
(iii) the purchase of fractional interests in shares of the Company's capital
stock pursuant to an acquisition or the conversion or exchange provisions of
such capital stock or the security being converted or exchanged, and (iv)
redemptions or purchases pursuant to the Company's Rights Agreement, dated
August 7, 1995, between the Company and AmSouth Bank of Alabama as Rights
Agent), (b) the Company shall not make any payment of principal, premium, if
any, or interest on or repay, repurchase or redeem any debt securities issued by
the Company that rank pari passu with or junior to the Securities and (c) the
Company shall not make any guarantee payments with respect to the foregoing
(other than pursuant to the Preferred Securities Guarantee, dated as of
__________, 199_ of the Company (the "Guarantee") with respect to the ___% Trust
Originated Preferred Securities (the "Preferred Securities") issued by PLC
Capital Trust II ("PLC Capital"), the Common Securities Guarantee, dated as of
__________, 199_ of the Company (the "Common Guarantee," and together with the
Guarantee, the "Guarantees") with respect to the ___% Trust Originated Common
Securities (the "Common Securities," and together with the Preferred Securities,
the "Trust Securities") issued by PLC Capital, the Preferred Securities
Guarantee Agreement, dated April 29, 1997, of the Company, with respect to the 8
1/4% Trust Originated Preferred Securities of PLC Capital Trust I and the Common
Securities Guarantee Agreement, dated as of April 29, 1997, of the Company with
respect to the 8 1/4% Trust Originated Common Securities of PLC Capital Trust I
(together the "8 1/4% TOPrS Guarantees") and the Guarantee Agreement, dated as
of June 9, 1994 of the Company (the "Series A Guarantee") with respect to the 9%
Cumulative Monthly Income Preferred Securities, Series A of PLC Capital L.L.C.).
Prior to the termination of any such Extension Period, the Company may further
defer payments of interest by extending the interest payment period; provided,
however, that, such Extension Period, including all such previous and further
extensions, may not exceed 20 consecutive quarters or beyond the Stated
Maturity. Upon the termination of any Extension Period and the payment of all
amounts then due, the Company may commence a new Extension Period, subject to
the terms set forth in this section. No interest shall be due and payable during
any Extension Period, except at the end thereof, but the Company may prepay at
any time all or any portion of the interest accrued during an Extension Period.
If the Institutional Trustee (as defined in the Amended and Restated Declaration
of Trust of PLC Capital, dated as of __________, 199_ (the "Declaration of
Trust")) shall be the sole holder of the Securities, the Company shall give the
Regular Trustees (as defined in the Declaration of Trust) and
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the Institutional Trustee (as defined in the Declaration of Trust), notice of
its selection of such Extension Period one Business Day prior to the earlier of
(i) the date distributions on the Preferred Securities are payable or (ii) the
date the Regular Trustees are required to give notice of the record date or the
date such distribution is payable to the New York Stock Exchange (or other
applicable self-regulatory organization) or to holders of the Preferred
Securities, but in any event at least one Business Day before such record date.
If the Institutional Trustee shall not be the sole holder of the Securities, the
Company shall give the holders of the Securities notice of its selection of such
Extension Period at least 10 Business Days prior to the earlier of (i) the
Interest Payment Date or (ii) the date upon which the Company is required to
give notice of the record or payment date of such interest payment to the New
York Stock Exchange (or other applicable self-regulatory organization) or to
holders of the Securities. The quarter in which any notice is given pursuant to
this Section 2.5 shall be counted as one of the 20 quarters permitted in the
maximum Extension Period permitted hereunder.
Section 2.6. Shortening or Extension of Stated Maturity.
Notwithstanding anything contained herein or in the Indenture to the
contrary, the Company shall have the right to (i) shorten the Stated Maturity
of the principal of the Securities at any time to any date not earlier than
__________, 20__, and (ii) extend the Stated Maturity of the principal of the
Securities at any time at its election for one or more periods, but in no
event to a date later __________, 20__; provided that, if the Company elects
to exercise its right to extend the Stated Maturity of the principal of the
Securities pursuant to clause (ii), above, at the time such election is made
and at the time of extension (A) the Company is not in bankruptcy, otherwise
insolvent or in liquidation, (B) the Company is not in default in the payment
of any interest or principal on the Securities, (C) in the case of the
Securities held by PLC Capital, PLC Capital is not in arrears on payments of
Distributions (as defined in the Declaration of Trust) on the Preferred
Securities and no deferred Distributions are accumulated and (D) the
Securities are rated not less than BBB- by Standard & Poor's Ratings Services
or Baa3 by Moody's Investors Service, Inc. or the equivalent by any other
nationally recognized statistical rating organization; provided, further,
that the Company may at any time irrevocably waive its right to extend the
Stated Maturity date. In the event the Company elects to shorten or extend
the Stated Maturity of the Securities or to irrevocably waive its right to
extend the Stated Maturity of the Securities, it shall give notice to the
Trustee, and the Trustee shall give notice of such shortening or extension or
waiver to the Holders of the Securities, no less than 30 and no more than 90
days prior to the effectiveness thereof.
Section 2.7. Place of Payment. The Place of Payment where the
Securities issued in certificated form may be presented or surrendered for
payment, where such Securities may be surrendered for registration of transfer
or exchange and
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where notices and demands to and upon the Company in respect of such Securities
and the Indenture may be served shall be the Corporate Trust Office of the
Trustee; provided, however, that payment of interest may be made at the option
of the Company by checks mailed to the Holders at such addresses as shall appear
in the Register. Notwithstanding the foregoing, so long as the Holder of any
Securities is the Institutional Trustee, the payment of the principal of and
interest (including Compound Interest and Additional Interest, if any) on such
Securities held by the Institutional Trustee will be made at such place and to
such account as may be designated by the Institutional Trustee.
Section 2.8. Redemption. Subject to the terms and conditions of
Article 10 of the Indenture:
(1) Optional Redemption. The Company may redeem the Securities in
whole at any time or in part from time to time, in each case on or after
__________, 20__, but prior to the Stated Maturity, upon not less than 30
nor more than 60 days' notice, at a redemption price equal to 100% of the
principal amount of the Securities to be redeemed plus any accrued and
unpaid interest, including Additional Interest, if any, to the date fixed
for redemption (the "Redemption Price").
(2) The Company will have the right at any time to dissolve PLC
Capital and cause the Securities to be distributed to the holders of the
Trust Securities in accordance with the Declaration of Trust.
(3) Tax Event Redemption. "Tax Event" means the receipt by the
Company of an opinion of nationally recognized independent tax counsel
experienced in such matters to the effect that, as a result of (i) any
amendment to, or change (including any announced prospective change) in,
on or after the day before the date of issuance of the Preferred
Securities under the Declaration, the laws (or any regulations thereunder)
of the United States or any political subdivision or taxing authority
thereof or therein or (ii) any interpretation or application of, or
pronouncement with respect to, such laws or regulations by any legislative
body, court, governmental agency or regulatory authority, which amendment
or change is effective or which interpretation, application or
pronouncement is announced on or after the day before the date of issuance
of the Preferred Securities under the Declaration, there is more than an
insubstantial increase in the risk (x) that PLC Capital is, or will be
within 90 days of the date thereof, subject to United States federal
income tax with respect to income received or accrued on the Securities
and that PLC Capital would be
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subject to United States federal income tax if the Securities were
distributed to the holders of the Trust Securities in liquidation of
such holders' interests in PLC Capital pursuant to the exercise by the
Company of its right to dissolve PLC Capital, (y) that interest payable
by the Company on the Securities is not, or within 90 days of the date
thereof, will not be, deductible, in whole or in part, for United
States federal income tax purposes, even if the Securities were
distributed to the holders of the Trust Securities in liquidation of
such holders' interests in PLC Capital pursuant to the exercise by the
Company of its right to dissolve PLC Capital or (z) that PLC Capital
is, or will be within 90 days of the date thereof, subject to more than
a de minimis amount of other taxes, duties or other governmental
charges and that PLC Capital would be subject to more than a de minimis
amount of taxes, duties or other governmental charges if the Securities
were distributed to the holders of the Trust Securities in liquidation
of such holders' interests in PLC Capital pursuant to the exercise by
the Company of its right to dissolve PLC Capital.
If, at any time, a Tax Event shall occur and be continuing, the
Company shall have the right, upon not less than 30 nor more than 60 days
notice, to redeem the Securities in whole or in part, for cash in the
amount of the Redemption Price, within 90 days following the occurrence of
such Tax Event, and, following such redemption, Trust Securities with an
aggregate liquidation amount equal to the aggregate principal amount of
the Securities so redeemed shall be redeemed by PLC Capital at the
Redemption Price on a pro rata basis; provided, however, that if at the
time there is available to the Company or the Trust the opportunity to
eliminate, within such 90 day period, the Tax Event by taking some
ministerial action, such as filing a form or making an election or
pursuing some other similar reasonable measure that has no adverse effect
on PLC Capital, the Company or the holders of the Trust Securities, the
Company or PLC Capital will pursue such measure in lieu of a redemption.
(4) The Securities are not entitled to the benefit of any sinking
fund.
(5) If Securities are distributed to the holders of the Preferred
Securities, (i) the Company will use its best efforts to cause the
Securities to be listed on the New York Stock Exchange or on such other
exchange as the Preferred Securities are then listed, and (ii) the
Indenture, this Supplemental Indenture No. 4 and the terms of the
Securities may, thereafter, be modified or amended with the consent of not
less than 66-2/3% in principal amount of the Securities at any time
outstanding, provided, however, that no such modification or amendment
may, without the consent of the Holder of each Security affected
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thereby, (a) extend the stated maturity of the principal of any Security
(other than as provided in Section 2.6 of this Supplemental Indenture No.
4), or reduce the principal amount thereof or reduce the rate or extend
the time of payment of interest thereon (other than as provided in Section
2.5 or this Supplemental Indenture No. 4), 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 Security when due or (b) reduce the
aforesaid principal amount of Securities, the consent of the Holders of
which is required for any such modification.
Section 2.9. Preferred Security Holders' Rights. If an Event of
Default constituting the failure to pay interest or principal on the Debentures
on the date such interest or principal is otherwise payable has occurred and is
continuing, then a holder of Preferred Securities may directly institute a
proceeding for enforcement of payment to such holder directly of the principal
of or interest on the Securities having a principal amount equal to the
aggregate liquidation amount of the Preferred Securities of such holder on or
after the respective due date specified in the Securities. The holders of
Preferred Securities will not be able to exercise directly any other remedy
available to the holders of the Securities under this Supplemental Indenture No.
4 or under the Indenture unless the Institutional Trustee fails to do so.
Section 2.10. Additional Covenants. The Company agrees that if (i)
there shall have occurred any event that would constitute an Event of Default
(as defined herein) or (ii) the Company shall be in default with respect to its
payment of any obligations under the Guarantee or Common Guarantee, or (iii) the
Company shall have given notice of its election to defer payments of interest on
such Securities by extending the interest payment period as provided in this
Supplemental Indenture No. 4 and such period, or any extension thereof, shall be
continuing, then (a) the Company shall not declare or pay any dividend on, make
any distribution with respect to, or redeem, purchase, acquire or make a
liquidation payment with respect to any of its capital stock (other than (i)
purchases or acquisitions of shares of the Company's common stock in connection
with the satisfaction by the Company of its obligations under any employee
benefit plans or the satisfaction by the Company of its obligation pursuant to
any contract or security requiring it to purchase shares of its common stock,
(ii) as a result of a reclassification of the Company's capital stock or the
exchange or conversion of one class or series of the Company's capital stock for
another class or series of its capital stock, (iii) the purchase of fractional
interests in shares of the Company's capital stock pursuant to an acquisition or
the conversion or exchange provisions of such capital stock or the security
being converted or exchanged, and (iv)
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redemptions or purchases pursuant to the Company's Rights Agreement, dated
August 7, 1995, between the Company and AmSouth Bank of Alabama as Rights
Agent), (b) the Company shall not make any payment of principal, premium, if
any, or interest on or repay, repurchase or redeem any debt securities issued by
the Company that rank pari passu with or junior to the Securities and (c) the
Company shall not make any guarantee payments with respect to the foregoing
(other than pursuant to either of the Guarantees, the 8 1/4% TOPrS Guarantees or
the Series A Guarantee).
The Company agrees (i) to directly or indirectly maintain 100% ownership
of the Common Securities; provided, however, that any permitted successor of the
Company under the Indenture may succeed to the Company's ownership of such
Common Securities, (ii) not to voluntarily terminate, wind-up or liquidate PLC
Capital, except (a) in connection with a distribution of Securities to the
holders of the Preferred Securities in liquidation of PLC Capital, or (b) in
connection with certain mergers, consolidations or amalgamations permitted by
the Declaration of Trust and (iii) to use its reasonable efforts, consistent
with the terms and provisions of the Declaration of Trust, to cause PLC Capital
to remain a grantor trust and not to be classified as an association taxable as
a corporation for United States federal income tax purposes.
Section 2.11. Denomination. The Securities shall be issuable in
denominations of $1,000 and integral multiples thereof.
Section 2.12. Currency. Principal and interest on the Securities
shall be payable in Dollars.
Section 2.13. Registered Securities; Form. Except as provided in
Section 2.14, the Securities shall be issued as Registered Securities, without
coupons and shall be registered in the name of Wilmington Trust Company, as
Institutional Trustee, and its permitted registered assigns. The Securities
shall be substantially in the form attached as Exhibit A hereto.
Section 2.14. Global Securities Upon Liquidation of Trust.
(a) If, in accordance with the Declaration of Trust, PLC Capital is
to be dissolved and the Securities held by the Institutional Trustee are to be
distributed to the holders of the Trust Securities:
(i) the Securities in certificated form shall be presented to the
Trustee by the Institutional Trustee in exchange for a global Security in an
aggregate principal amount equal to the aggregate principal amount of all
outstanding Securities (a "Global
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Security") to be registered in the name of the Depository (as defined in the
Declaration of Trust), or its nominee, and delivered by the Trustee to the
Depository for crediting to the accounts of its participants pursuant to the
instructions of the Regular Trustees (as defined in the Declaration of Trust).
The Company upon any such presentation shall execute a Global Security in such
aggregate principal amount and deliver the same to the Trustee for
authentication and delivery in accordance with the Indenture and this
Supplemental Indenture No. 4. Payments on Securities issued as Global Securities
will be made to the Depository; and
(ii) if any Preferred Securities are held in non book-entry
certificated form, the Securities in certificated form may be presented to the
Trustee by the Institutional Trustee and any Preferred Security Certificate (as
defined in the Declaration of Trust) which represents Preferred Securities other
than Preferred Securities held by the Clearing Agency (as defined in the
Declaration of Trust) or its nominee ("Non Book-Entry Preferred Securities")
will be deemed to represent beneficial interests in Securities presented to the
Trustee by the Institutional Trustee having an aggregate principal amount equal
to the aggregate liquidation amount of the Non Book-Entry Preferred Securities
until such Preferred Security Certificates are presented to the Registrar for
transfer or reissuance at which time such Preferred Security Certificates will
be canceled and a Security, registered in the name of the holder of the
Preferred Security Certificate or the transferee of the holder of such Preferred
Security Certificate, as the case may be, with an aggregate principal amount
equal to the aggregate liquidation amount of the Preferred Security Certificate
canceled, will be executed by the Company and delivered to the Trustee for
authentication and delivery in accordance with the Indenture and this
Supplemental Indenture No. 4. On issue of such Securities, Securities with an
equivalent aggregate principal amount that were presented by the Institutional
Trustee to the Trustee will be deemed to have been canceled.
(b) Unless and until it is exchanged for the Securities in
registered form, a Global Security may be transferred, in whole but not in part,
only to another nominee of the Depository, or to a successor Depository selected
or approved by the Company or to a nominee of such successor Depository.
(c) If at any time the Depository notifies the Company that it is
unwilling or unable to continue as Depository or if at any time the Depository
for such series shall no longer be registered or in good standing under the
Securities Exchange Act of 1934, as amended, or other applicable statute or
regulation, and a successor Depository for such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such condition, as the case may be,
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the Company will execute, and, subject to Article III of the Indenture, the
Trustee, upon written notice from the Company, will authenticate and deliver the
Securities in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Security in exchange for such Global Security. In addition,
the Company may at any time determine that the Securities shall no longer be
represented by a Global Security. In such event the Company will execute, and
subject to Section 3.3 of the Indenture, the Trustee, upon receipt of an
Officer's Certificate evidencing such determination by the Company, will
authenticate and deliver the Securities in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount equal
to the principal amount of the Global Security in exchange for such Global
Security. Upon the exchange of the Global Security for such Securities in
definitive registered form without coupons, in authorized denominations, the
Global Security shall be canceled by the Trustee. Such Securities in definitive
registered form issued in exchange for the Global Security shall be registered
in such names and in such authorized denominations as the Depository, pursuant
to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the
Depository for delivery to the Persons in whose names such Securities are so
registered.
Section 2.15. Defeasance and Covenant Defeasance. The provisions of
Sections 4.4 and 4.5 of the Indenture shall apply to the Securities.
Section 2.16. Registrar and Paying Agent. The Trustee shall
initially serve as Registrar and Paying Agent.
Section 2.17. Additional Provisions Regarding Amendments. So long as
the Holder of the Securities is PLC Capital, the terms of the Securities may be
amended by mutual consent of the Company and PLC Capital in the manner they
shall agree; provided, however, that, so long as any of the Preferred Securities
remain outstanding, no such amendment shall be made that adversely affects the
holders of the Preferred Securities, no termination of the Securities shall
occur, and no Event of Default or compliance with any covenant under the
Securities may be waived by PLC Capital, without the prior approval of the
holders of at least 66-2/3% in liquidation preference of all Preferred
Securities then outstanding, in writing or at a duly constituted meeting of such
holders.
Section 2.18. Additional Provisions Regarding Assignment. The
Company shall have the right at all times to assign any of its rights or
obligations under the Securities to a direct or indirect wholly-owned subsidiary
of the Company;
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provided, however, that, in the event of any such assignment, the Company shall
remain jointly and severally liable for all such obligations. So long as PLC
Capital is the Holder of the Securities, PLC Capital may not assign any of its
rights under the Securities, other than in connection with a merger or
consolidation or sale of assets or exchange permitted under the terms of the
Preferred Securities. Subject to the foregoing, the Securities shall be binding
upon and inure to the benefit of the Company and PLC Capital and their
respective permitted successors and assigns. Any assignment by the Company or
PLC Capital in contravention of such provisions will be null and void.
Section 2.19. Miscellaneous Expenses.
(a) In connection with the offering, sale and issuance of the
Securities to the Institutional Trustee and in connection with the sale of the
Trust Securities by PLC Capital, the Company, in its capacity as borrower with
respect to the Securities, shall pay (i) all costs and expenses relating to the
offering, sale and issuance of the Trust Securities and the Securities,
including commissions to the underwriters payable pursuant to the Purchase
Agreement and compensation of the Trustee under the Indenture, (ii) all costs
and expenses of PLC Capital (including, but not limited to, costs and expenses
relating to the organization of PLC Capital, the offering sale and issuance of
the Trust Securities (including commissions to the underwriters in connection
therewith), the fees and expenses of the Institutional Trustee and the Delaware
Trustee, the costs and expenses relating to the operation of the PLC Capital,
including, without limitation, costs and expenses of accountants, attorneys,
statistical or bookkeeping services, expenses for printing and engraving and
computing or accounting equipment, paying agent(s), registrar(s), transfer
agent(s), duplicating, travel and telephone and other telecommunications
expenses and costs and expenses incurred in connection with the acquisition,
financing, and disposition of PLC Capital's assets), and (iii) the enforcement
by the Institutional Trustee (as defined in the Declaration of Trust) of the
rights of the holders of the Preferred Securities. The Company fully and
unconditionally guarantees the payment of such expenses.
(b) If at any time PLC Capital shall be required to pay any taxes,
duties, assessments or governmental charges of whatever nature (other than
withholding taxes) imposed by the United States, or any other domestic taxing
authority, then, in any such case, the Company agrees to pay, as additional
interest ("Additional Interest") such additional amounts as shall be required so
that the net amounts received and retained by PLC Capital with respect to the
Securities after paying any such taxes, duties, assessments or other
governmental charges, as well as all liabilities, costs and expenses of PLC
Capital with respect to any such items, will be not less than the
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amounts PLC Capital would have received had no such taxes, duties, assessments
or other governmental charges been imposed and no such liabilities, costs and
expenses with respect thereto been incurred.
ARTICLE 3
Miscellaneous Provisions
Section 3.1. The Indenture, as supplemented and amended by this
Supplemental Indenture No. 4, is in all respects hereby adopted, ratified and
confirmed.
Section 3.2. This Supplemental Indenture No. 4 may be executed in
any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
SECTION 3.3. THIS SUPPLEMENTAL INDENTURE NO. 4 AND EACH SECURITY
SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK
AND SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture No. 4 to be duly executed, as of the day and year first written above.
PROTECTIVE LIFE CORPORATION
By:
-----------------------------
Name:
Title:
By:
-----------------------------
Name:
Title:
[Seal]
Attest:
-----------------------
Name:
Title:
AMSOUTH BANK, Trustee
By:
-----------------------------
Name:
Title:
[Seal]
Attest:
-----------------------
Name:
Title:
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Exhibit A
FORM OF FACE OF SERIES _ SUBORDINATED DEBENTURE
THIS SERIES _ SUBORDINATED DEBENTURE IS REGISTERED IN THE NAME OF
WILMINGTON TRUST COMPANY, AS INSTITUTIONAL TRUSTEE, AND MAY NOT BE
TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF OTHER THAN AS PERMITTED IN THE
SUPPLEMENTAL INDENTURE NO. 4 DATED AS OF__________, 199_, A COPY OF WHICH
IS ON FILE WITH THE SECRETARY OF THE COMPANY.
ARTICLE VIII
FORM OF DEBENTURE
[IF THE DEBENTURE IS TO BE A GLOBAL SECURITY INSERT This
Subordinated Debenture is Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depository or a
nominee of the Depository. This Subordinated Debenture is exchangeable for
Subordinated Debentures registered in the name of a person other than the
Depository or its nominee only in the limited circumstances described in the
Indenture, and no transfer of this Subordinated Debenture (other than a transfer
of this Subordinated Debenture as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository) may be registered except in limited circumstances.
Unless this Subordinated Debenture is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the issuer or its agent for registration of transfer, exchange or
payment, and any Subordinated Debenture issued is registered in the name of Cede
& Co. or such other name as requested by an authorized representative of the
Depository Trust Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.]
<PAGE>
PROTECTIVE LIFE CORPORATION
___% Subordinated Debentures
Due__________, 20__, Series _
No. 1 $__________
PROTECTIVE LIFE CORPORATION, a corporation duly organized and
existing under the laws of the State of Delaware (herein called the "Company",
which term includes any successor corporation under the Indenture (as defined on
the reverse hereof)), for value received, hereby promises to pay to
______________________, the principal sum of $_________ on__________, 20__ (such
date, and any other such other date to which the stated maturity of this
Subordinated Debenture may be shortened or extended, as described below, is
hereinafter referred to as the "Stated Maturity") and to pay interest thereon
from. Interest shall be payable on this Subordinated Debenture, in arrears, on
March 31, June 30, September 30 and December 31 of each year (each an "Interest
Payment Date") commencing __________, 199_, at the rate of ___% per annum, until
the principal hereof is paid or made available for payment; provided that any
such installment of interest, which is overdue shall bear interest at the rate
of ___% per annum (to the extent that the payment of such interest shall be
legally enforceable) from the dates such amounts are due until they are paid or
made available for payment, and such interest shall be payable on demand;
provided further that, notwithstanding anything contained in the Indenture and
Supplemental Indenture No. 4 (as defined on the reverse hereof) to the contrary,
the Company shall have the right at any time, and from time to time, during the
term of this Subordinated Debenture to defer payments of interest by extending
the interest payment period to the next Interest Payment Date by one or more
quarterly periods not exceeding 20 consecutive quarters (each such period, an
"Extension Period"), but no such Extension Period may extend beyond __________,
20__, or such other date to which the Stated Maturity may have been shortened or
extended as described below. At the end of any such Extension Period, the
Company shall pay all interest then accrued and unpaid (including any Additional
Interest, as hereinafter defined) together with interest thereon compounded
quarterly at the rate specified for this Subordinated Debenture to the extent
permitted by applicable law; provided, that during any such Extension Period,
(a) the Company shall not declare or pay dividends on, make any distribution
with respect to, or redeem, purchase, acquire or make a liquidation payment with
respect to any of its capital stock (other than (i) purchases or acquisitions of
shares of the Company's common stock in connection with
2
<PAGE>
the satisfaction by the Company of its obligations under any employee benefit
plans or the satisfaction by the Company of its obligation pursuant to any
contract or security requiring it to purchase shares of its common stock, (ii)
as a result of a reclassification of the Company's capital stock or the exchange
or conversion of one class or series of the Company's capital stock for another
class or series of its capital stock, (iii) the purchase of fractional interests
in shares of the Company's capital stock pursuant to an acquisition or the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged, and (iv) redemptions or purchases pursuant to the
Company's Rights Agreement, dated August 7, 1995, between the Company and
AmSouth Bank of Alabama as Rights Agent), (b) the Company shall not make any
payment of principal, premium, if any, or interest on or repay, repurchase or
redeem any debt securities issued by the Company that rank pari passu with or
junior to the Securities (as defined in Supplemental Indenture No. 4) and (c)
the Company shall not make any guarantee payments with respect to the foregoing
(other than pursuant to the Preferred Securities Guarantee, dated as of
__________, 199_ of the Company (the "Guarantee") with respect to the ___% Trust
Originated Preferred Securities (the "Preferred Securities") issued by PLC
Capital Trust II ("PLC Capital"), the Common Securities Guarantee, dated as of
__________, 199_ of the Company (the "Common Guarantee," and together with the
Guarantee, the "Guarantees") with respect to the ___% Trust Originated Common
Securities (the "Common Securities," and together with the Preferred Securities,
the "Trust Securities") issued by PLC Capital, the Preferred Securities
Guarantee Agreement, dated April 29, 1997, of the Company, with respect to the 8
1/4% Trust Originated Preferred Securities of PLC Capital Trust I and the Common
Securities Guarantee Agreement, dated as of April 29, 1997, of the Company with
respect to the 8 1/4% Trust Originated Common Securities of PLC Capital Trust I
(together the "8 1/4% TOPrS Guarantees") and the Guarantee Agreement, dated as
of June 9, 1994 of the Company (the "Series A Guarantee") with respect to the 9%
Cumulative Monthly Income Preferred Securities, Series A of PLC Capital L.L.C.).
Prior to the termination of any such Extension Period, the Company may further
defer payments of interest by extending the interest payment period; provided,
however, that, such Extension Period, including all such previous and further
extensions, may not exceed 20 consecutive quarters or beyond the Stated
Maturity. Upon the termination of any Extension Period and the payment of all
amounts then due, the Company may commence a new Extension Period, subject to
the terms set forth below. No interest shall be due and payable during any
Extension Period, except at the end thereof, but the Company may prepay at any
time all or any portion of the interest accrued during any Extension Period. If
the Institutional Trustee (as defined in the Amended and Restated Declaration of
Trust of PLC Capital (the "Declaration of Trust") shall be the sole holder of
the Securities, the Company shall give the Regular Trustees (as defined in the
Declaration of Trust) and the Institutional Trustee (as
3
<PAGE>
defined in the Declaration of Trust), notice of its selection of such Extension
Period one Business Day prior to the earlier of (i) the date distributions on
the Preferred Securities are payable or (ii) the date the Regular Trustees are
required to give notice of the record date or the date such distribution is
payable to the New York Stock Exchange (or other applicable self-regulatory
organization) or to holders of the Preferred Securities, but in any event at
least one Business Day before such record date. If the Institutional Trustee
shall not be the sole holder of the Securities, the Company shall give the
holders of the Securities notice of its selection of such Extension Period at
least 10 Business Days prior to the earlier of (i) the Interest Payment Date or
(ii) the date upon which the Company is required to give notice of the record or
payment date of such interest payment to the New York Stock Exchange (or other
applicable self-regulatory organization) or to holders of the Securities. The
quarter in which any notice is given in accordance with the foregoing provisions
shall be counted as one of the 20 quarters permitted in the maximum Extension
Period permitted hereunder.
The Company shall have the right to (i) shorten the Stated
Maturity of the principal of this Subordinated Debenture at any time to any
date not earlier than __________, 20__, and (ii) extend the stated maturity
of the principal of this Subordinated Debenture at any time at its election
for one or more periods, but in no event to a date later than __________,
20__; provided that, if the Company elects to exercise its right to extend
the Stated Maturity of the principal of this Subordinated Debenture pursuant
to clause (ii), above, at the time such election is made and at the time of
extension (A) the Company is not in bankruptcy, otherwise insolvent or in
liquidation, (B) the Company is not in default in the payment of any interest
or principal on the Securities, (C) in the case of the Securities held by PLC
Capital, PLC Capital is not in arrears on payments of Distributions (as
defined in the Amended and Restated Declaration of Trust of PLC Capital) on
the ___% Trust Originated Preferred Securities of PLC Capital and no deferred
Distributions are accumulated and (D) the Securities are rated not less than
BBB- by Standard & Poor's Ratings Services or Baa3 by Moody's Investors
Service, Inc. or the equivalent by any other nationally recognized
statistical rating organization; provided, further, that the Company may at
any time irrevocably waive its right to extend the Stated Maturity date. In
the event the Company elects to shorten or extend the Stated Maturity of the
Securities or to irrevocably waive its right to extend the Stated Maturity of
the Securities, it shall give notice to the Trustee, and the Trustee shall
give notice of such shortening or extension or waiver to the Holder hereof,
no less than 30 and no more than 90 days prior to the effectiveness thereof.
The amount of interest payable on any Interest Payment Date shall be
computed on the basis of twelve 30-day months and a 360-day year and, for any
period that is shorter than a full 90-day quarter, will be calculated on the
basis of the actual
4
<PAGE>
number of days elapsed in such period. In the event that any date on which
interest is payable on this Security is not a Business Day, then payment of the
interest payable on such date will be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any such
delay), except that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date. The interest
so payable on any Interest Payment Date which is punctually paid or duly
provided for on any Interest Payment Date will, as provided in the Indenture
referred to on the reverse hereof, be paid to the Person in whose name this
Subordinated Debenture is registered at the close of business on the Regular
Record Date for such Interest Payment Date, which shall be the Business Day next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Person in whose
name this Security is registered on the relevant Regular Record Date, and such
defaulted interest shall instead be payable to the person in whose name this
Subordinated Debenture is registered on the special record date for such
defaulted interest or other specified date determined in accordance with the
Indenture and the Supplemental Indenture No. 4 referred to on the reverse
hereof.
Payment of the principal of and any such interest on this
Subordinated Debenture will be made at the Corporate Trust Office of the
Trustee, in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts, provided,
however, that at the option of the Company payment of interest may be paid (i)
by check mailed to the address of the person entitled thereto as such address
shall appear in the Register of Holders of the Subordinated Debentures or (ii)
by wire transfer to an account maintained by the Person entitled thereto as
specified in the Register of Holders of the Securities.
Reference is hereby made to the further provisions of this
Subordinated Debenture set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Subordinated Debenture shall not be entitled to any benefit under the Indenture
and Supplemental Indenture No. 4 referred to on the reverse hereof or be valid
or obligatory for any purpose.
5
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated:
PROTECTIVE LIFE CORPORATION
By
--------------------------------
By
--------------------------------
[CORPORATE SEAL]
This is one of the Securities of the series described in the
within-mentioned Indenture.
AMSOUTH BANK, as Trustee
By
--------------------------------
Authorized Signatory
6
<PAGE>
[FORM OF REVERSE OF SERIES _ SUBORDINATED DEBENTURE]
This Subordinated Debenture is one of a duly authorized issue of
securities of the Company (herein called the "Securities"), issued and to be
issued in one or more series under a Subordinated Indenture, dated as of June 1,
1994 (herein, together with all indentures supplemental thereto, including
Supplemental Indenture No. 1, dated as of June 9, 1994, Supplemental Indenture
No. 2, dated August 1, 1994, Supplemental Indenture No. 3, dated April 29, 1997
and Supplemental Indenture No. 4, dated __________, 199_ called the
"Indenture"), from the Company to AmSouth Bank (as successor by merger to
AmSouth Bank of Alabama, successor by conversion of charter to AmSouth Bank
N.A.) (herein called the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee, the holders of Senior Indebtedness and
the Holders of the Securities and of the terms upon which the Securities are,
and are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof, limited in aggregate principal amount to
$__________ and is issued pursuant to Supplemental Indenture No. 4, dated as of
__________, 1997 from the Company to the Trustee, relating to the Securities of
this series (herein called "Supplemental Indenture No. 4").
The indebtedness evidenced by this Security is to the extent
provided in the Indenture, subordinate and junior in right of payment to all
Senior Indebtedness, and this Security is issued subject to the provisions of
the Indenture with respect thereto. Each holder of this Security, by accepting
the same, (a) agrees to and shall be bound by such provisions, (b) authorizes
and directs the Trustee on his behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination so provided and (c)
appoints the Trustee his attorney-in-fact for any and all such purposes. Each
Holder hereof, by his acceptance hereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and in the Indenture
by each holder of Senior Indebtedness, whether now outstanding or hereafter
incurred, and waives reliance by each such holder upon said provisions.
The Securities of this series are subject to redemption at any time
in whole or from time to time in part, on or after __________, 20__, but prior
to their stated maturity (or such other date to which the stated maturity of
this Subordinated Debenture may be shortened or extended, as described on the
face of this Subordinated Debenture), or, in whole at any time or in part from
time to time if a Tax Event shall have occurred, upon not less than 30 nor more
than 60 days notice, at a redemption
7
<PAGE>
price equal to 100% of the principal amount to be redeemed plus any accrued and
unpaid interest, including Additional Interest, if any, to the redemption date
within 90 days following the occurrence of such Tax Event; provided, however,
that if at the time there is available to the Company or PLC Capital the
opportunity to eliminate, within such 90 day period, the Tax Event by taking
some ministerial action, such as filing a form or making an election or pursuing
some other similar reasonable measure that has no adverse effect on PLC Capital,
the Company or the holders of the Trust Securities, the Company or PLC Capital
will pursue such measure in lieu of redemption.
In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
If an Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture.
The Indenture contains provisions for defeasance at any time of the
indebtedness of this Security or of certain restrictive covenants and Events of
Default with respect to this Security, in each case upon compliance by the
Company with certain conditions set forth therein, which provisions apply to
this Security.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of at least a majority in aggregate principal amount of
the Securities at the time outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of the Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture or to Supplemental Indenture
No. 4 and no provision of this Security or of the Indenture or of Supplemental
Indenture No. 4 shall alter or impair the obligation of the Company, which is
absolute and
8
<PAGE>
unconditional, to pay the principal of, and interest on, this Security at the
times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations as
therein set forth, the transfer of this Security is registrable in the Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and interest on this
Security are payable, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company, the Trustee and the Registrar
duly executed by the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Securities of this series and of like tenor, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the person in whose name this Security is registered as the owner
hereof for all purposes, whether or not the Security be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Company and the Holder of this Security agree (i) that for
United States federal, state and local tax purposes it is intended that this
Security constitute indebtedness and (ii) to file all United States federal,
state and local tax returns and reports on such basis (unless the Company or
such Holder, as the case may be, shall have received an opinion of independent
nationally recognized tax counsel to the effect that as a result of a change in
law after the date of the issuance of this Security the Company or such Holder,
as the case may be, is prohibited from filing on such basis).
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
<PAGE>
EXHIBIT 4(n)
Draft--July 7, 1997
================================================================================
PROTECTIVE LIFE CORPORATION
to
AMSOUTH BANK
(as successor by merger to AmSouth Bank
of Alabama, successor by conversion of charter
to AmSouth Bank N.A.), as Trustee
---------------
SUPPLEMENTAL INDENTURE No. 5
Dated as of __________, 199_
---------------
___% Subordinated Debentures
Due 20__, Series _
$ __________
<PAGE>
PROTECTIVE LIFE CORPORATION
SUPPLEMENTAL INDENTURE No. 5
$ __________
___% Subordinated Debentures
Due 20__, Series _
SUPPLEMENTAL INDENTURE No. 5, dated as of __________, 199_ from
PROTECTIVE LIFE CORPORATION, a Delaware corporation (the "Company"), to AMSOUTH
BANK (as successor by merger to AmSouth Bank of Alabama, successor by conversion
of charter to AmSouth Bank N.A.), as trustee (the "Trustee").
Recitals
The Company has heretofore executed and delivered to the Trustee a
Subordinated Indenture, dated as of June 1, 1994 as supplemented and amended by
Supplemental Indenture No. 1, dated as of June 9, 1994, Supplemental Indenture
No. 2, dated as of August 1, 1994, Supplemental Indenture No. 3, dated as of
April 29, 1997 and Supplemental Indenture No. 4, dated as of __________, 199_
(as so supplemented and amended, the "Indenture"), providing for the issuance
from time to time of series of the Company's Securities.
Section 3.1 of the Indenture provides for various matters with
respect to any series of Securities issued under the Indenture to be established
in an indenture supplemental to the Indenture.
Section 8.1(7) of the Indenture provides for the Company and the
Trustee to enter into an indenture supplemental to the Indenture to establish
the form or terms of Securities of any series as provided by Sections 2.1 and
3.1 of the Indenture.
For and in consideration of the premises and the issuance of the
series of Securities provided for herein, it is mutually covenanted and agreed
as follows for the equal and ratable benefit of the Holders of the Securities of
such series:
<PAGE>
ARTICLE 1
Relation to Indenture; Definitions
Section 1.1. This Supplemental Indenture No. 5 constitutes an
integral part of the Indenture.
Section 1.2. For all purposes of this Supplemental Indenture No. 5:
(1) Capitalized terms used herein without definition shall have the
meanings specified in the Indenture;
(2) All references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this
Supplemental Indenture No. 5; and
(3) The terms "herein", "hereof", "hereunder" and other words of
similar import refer to this Supplemental Indenture No. 5.
ARTICLE 2
The Series of Securities
Section 2.1. Title of the Securities. There shall be a series of
Securities designated the "___% Subordinated Debentures Due 20__, Series _"
(hereinafter, the "Securities").
Section 2.2. Limitation on Aggregate Principal Amount; Date of
Securities. The aggregate principal amount of the Securities shall be limited to
$__________. Each Security shall be dated the date of its authentication.
Section 2.3. Principal Payment Dates. Subject to Section 2.6, the
principal amount of the Securities Outstanding (together with any accrued and
unpaid interest thereon) shall be payable in a single installment on __________,
20__.
Section 2.4. Interest and Interest Rates. The rate of interest on
each Security shall be ___% per annum, accruing from _________, 199_ and,
subject to
2
<PAGE>
Section 2.5, interest shall be payable, in arrears, on March 31, June 30,
September 30 and December 31 of each year (each an "Interest Payment Date"),
commencing __________, 199_. The amount of interest payable on any Interest
Payment Date shall be computed on the basis of twelve 30-day months and a
360-day year and, for any period that is shorter than a full 90-day quarter,
will be calculated on the basis of the actual number of days elapsed in such
period. In the event that any date on which interest is payable on a Security is
not a Business Day, then payment of the interest payable on such date will be
made on the next succeeding day which is a Business Day (and without any
interest or other payment in respect of any such delay), except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date. The interest so payable on any Security which is
punctually paid or duly provided for on any Interest Payment Date shall be paid
to the Person in whose name such Security is registered at the close of business
on the Regular Record Date for such Interest Payment Date, which, for purposes
of this Supplemental Indenture No. 5, shall be the Business Day preceding such
Interest Payment Date; provided, that in the event the Securities shall not
continue to remain in book-entry only form, the record dates shall be the March
15, June 15, September 15 and December 15 prior to the applicable Interest
Payment Date. The interest so payable on any Security which is not punctually
paid or duly provided for on any Interest Payment Date shall forthwith cease to
be payable to the Person in whose name such Security is registered on the
relevant Regular Record Date, and such defaulted interest shall instead be
payable to the Person in whose name such Security is registered on the special
record date or other specified date determined in accordance with the Indenture.
Section 2.5. Extension of Interest Payment Period. Notwithstanding
anything contained herein or in the Indenture to the contrary, the Company shall
have the right at any time, and from time to time, during the term of the
Securities to defer payments of interest by extending the interest payment
period to the next Interest Payment Date by one or more quarterly periods not
exceeding 20 consecutive quarters (each such period, an "Extension Period"), but
no such Extension Period may extend beyond __________, 20__, or such other date
to which the Stated Maturity may have been shortened or extended pursuant to
Section 2.6. At the end of any such Extension Period, the Company shall pay all
interest then accrued and unpaid (including any Additional Interest, as
hereinafter defined) together with interest thereon compounded quarterly at the
rate specified for the Securities to the extent permitted by applicable law
("Compound Interest"); provided, that during any such Extension Period, (a) the
Company shall not declare or pay dividends on, make any distribution with
respect to, or redeem, purchase, acquire or make a liquidation payment with
respect to any of its
3
<PAGE>
capital stock (other than (i) purchases or acquisitions of shares of the
Company's common stock in connection with the satisfaction by the Company of its
obligations under any employee benefit plans or the satisfaction by the Company
of its obligation pursuant to any contract or security requiring it to purchase
shares of its common stock, (ii) as a result of a reclassification of the
Company's capital stock or the exchange or conversion of one class or series of
the Company's capital stock for another class or series of its capital stock,
(iii) the purchase of fractional interests in shares of the Company's capital
stock pursuant to an acquisition or the conversion or exchange provisions of
such capital stock or the security being converted or exchanged, and (iv)
redemptions or purchases pursuant to the Company's Rights Agreement, dated
August 7, 1995, between the Company and AmSouth Bank of Alabama as Rights
Agent), (b) the Company shall not make any payment of principal, premium, if
any, or interest on or repay, repurchase or redeem any debt securities issued by
the Company that rank pari passu with or junior to the Securities and (c) the
Company shall not make any guarantee payments with respect to the foregoing
(other than pursuant to the Preferred Securities Guarantee, dated as of
__________, 199_ of the Company (the "Guarantee") with respect to the ___% Trust
Originated Preferred Securities (the "Preferred Securities") issued by PLC
Capital Trust III ("PLC Capital"), the Common Securities Guarantee, dated as of
__________, 199_ of the Company (the "Common Guarantee," and together with the
Guarantee, the "Guarantees") with respect to the ___% Trust Originated Common
Securities (the "Common Securities," and together with the Preferred Securities,
the "Trust Securities") issued by PLC Capital, the Preferred Securities
Guarantee Agreement, dated as of __________, 199_, of the Company, with respect
to the __% Trust Originated Preferred Securities of PLC Capital Trust II and the
Common Securities Guarantee Agreement, dated as of __________, 199_, of the
Company, with respect to the __% Trust Originated Common Securities of PLC
Capital Trust II (together the "PLC II __% TOPrS Guarantees"), the Preferred
Securities Guarantee Agreement, dated April 29, 1997, of the Company, with
respect to the 8 1/4% Trust Originated Preferred Securities of PLC Capital Trust
I, the Common Securities Guarantee Agreement, dated as of April 29, 1997, of the
Company with respect to the 8 1/4% Trust Originated Common Securities of PLC
Capital Trust I (together the "8 1/4% TOPrS Guarantees") and the Guarantee
Agreement, dated as of June 9, 1994 of the Company (the "Series A Guarantee")
with respect to the 9% Cumulative Monthly Income Preferred Securities, Series A
of PLC Capital L.L.C.). Prior to the termination of any such Extension Period,
the Company may further defer payments of interest by extending the interest
payment period; provided, however, that, such Extension Period, including all
such previous and further extensions, may not exceed 20 consecutive quarters or
beyond the Stated Maturity. Upon the termination of any Extension Period and the
payment of all amounts then due, the Company may commence a new Extension
Period, subject to the terms set forth in this section. No
4
<PAGE>
interest shall be due and payable during any Extension Period, except at the end
thereof, but the Company may prepay at any time all or any portion of the
interest accrued during an Extension Period. If the Institutional Trustee (as
defined in the Amended and Restated Declaration of Trust of PLC Capital, dated
as of __________, 199_ (the "Declaration of Trust")) shall be the sole holder of
the Securities, the Company shall give the Regular Trustees (as defined in the
Declaration of Trust) and the Institutional Trustee (as defined in the
Declaration of Trust), notice of its selection of such Extension Period one
Business Day prior to the earlier of (i) the date distributions on the Preferred
Securities are payable or (ii) the date the Regular Trustees are required to
give notice of the record date or the date such distribution is payable to the
New York Stock Exchange (or other applicable self-regulatory organization) or to
holders of the Preferred Securities, but in any event at least one Business Day
before such record date. If the Institutional Trustee shall not be the sole
holder of the Securities, the Company shall give the holders of the Securities
notice of its selection of such Extension Period at least 10 Business Days prior
to the earlier of (i) the Interest Payment Date or (ii) the date upon which the
Company is required to give notice of the record or payment date of such
interest payment to the New York Stock Exchange (or other applicable
self-regulatory organization) or to holders of the Securities. The quarter in
which any notice is given pursuant to this Section 2.5 shall be counted as one
of the 20 quarters permitted in the maximum Extension Period permitted
hereunder.
Section 2.6. Shortening or Extension of Stated Maturity.
Notwithstanding anything contained herein or in the Indenture to the
contrary, the Company shall have the right to (i) shorten the Stated Maturity
of the principal of the Securities at any time to any date not earlier than
__________, 20__, and (ii) extend the Stated Maturity of the principal of the
Securities at any time at its election for one or more periods, but in no
event to a date later __________, 20__; provided that, if the Company elects
to exercise its right to extend the Stated Maturity of the principal of the
Securities pursuant to clause (ii), above, at the time such election is made
and at the time of extension (A) the Company is not in bankruptcy, otherwise
insolvent or in liquidation, (B) the Company is not in default in the payment
of any interest or principal on the Securities, (C) in the case of the
Securities held by PLC Capital, PLC Capital is not in arrears on payments of
Distributions (as defined in the Declaration of Trust) on the Preferred
Securities and no deferred Distributions are accumulated and (D) the
Securities are rated not less than BBB- by Standard & Poor's Ratings Services
or Baa3 by Moody's Investors Service, Inc. or the equivalent by any other
nationally recognized statistical rating organization; provided, further,
that the Company may at any time irrevocably waive its right to extend the
Stated Maturity date. In the event the Company elects to shorten or extend
the Stated Maturity of the Securities or to irrevocably waive its right to
extend the Stated Maturity of the Securities, it shall give notice to the
Trustee, and the Trustee shall give notice of such shortening or extension or
waiver to the
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Holders of the Securities, no less than 30 and no more than 90 days prior to the
effectiveness thereof.
Section 2.7. Place of Payment. The Place of Payment where the
Securities issued in certificated form may be presented or surrendered for
payment, where such Securities may be surrendered for registration of transfer
or exchange and where notices and demands to and upon the Company in respect of
such Securities and the Indenture may be served shall be the Corporate Trust
Office of the Trustee; provided, however, that payment of interest may be made
at the option of the Company by checks mailed to the Holders at such addresses
as shall appear in the Register. Notwithstanding the foregoing, so long as the
Holder of any Securities is the Institutional Trustee, the payment of the
principal of and interest (including Compound Interest and Additional Interest,
if any) on such Securities held by the Institutional Trustee will be made at
such place and to such account as may be designated by the Institutional
Trustee.
Section 2.8. Redemption. Subject to the terms and conditions of
Article 10 of the Indenture:
(1) Optional Redemption. The Company may redeem the Securities in
whole at any time or in part from time to time, in each case on or after
__________, 20__, but prior to the Stated Maturity, upon not less than 30
nor more than 60 days' notice, at a redemption price equal to 100% of the
principal amount of the Securities to be redeemed plus any accrued and
unpaid interest, including Additional Interest, if any, to the date fixed
for redemption (the "Redemption Price").
(2) The Company will have the right at any time to dissolve PLC
Capital and cause the Securities to be distributed to the holders of the
Trust Securities in accordance with the Declaration of Trust.
(3) Tax Event Redemption. "Tax Event" means the receipt by the
Company of an opinion of nationally recognized independent tax counsel
experienced in such matters to the effect that, as a result of (i) any
amendment to, or change (including any announced prospective change) in,
on or after the day before the date of issuance of the Preferred
Securities under the Declaration, the laws (or any regulations thereunder)
of the United States or any political subdivision or taxing authority
thereof or therein or (ii) any interpretation or application of, or
pronouncement with respect to, such laws or regulations by any legislative
body, court, governmental agency or regulatory
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authority, which amendment or change is effective or which
interpretation, application or pronouncement is announced on or after
the day before the date of issuance of the Preferred Securities under
the Declaration, there is more than an insubstantial increase in the
risk (x) that PLC Capital is, or will be within 90 days of the date
thereof, subject to United States federal income tax with respect to
income received or accrued on the Securities and that PLC Capital would
be subject to United States federal income tax if the Securities were
distributed to the holders of the Trust Securities in liquidation of
such holders' interests in PLC Capital pursuant to the exercise by the
Company of its right to dissolve PLC Capital, (y) that interest payable
by the Company on the Securities is not, or within 90 days of the date
thereof, will not be, deductible, in whole or in part, for United
States federal income tax purposes, even if the Securities were
distributed to the holders of the Trust Securities in liquidation of
such holders' interests in PLC Capital pursuant to the exercise by the
Company of its right to dissolve PLC Capital or (z) that PLC Capital
is, or will be within 90 days of the date thereof, subject to more than
a de minimis amount of other taxes, duties or other governmental
charges and that PLC Capital would be subject to more than a de minimis
amount of taxes, duties or other governmental charges if the Securities
were distributed to the holders of the Trust Securities in liquidation
of such holders' interests in PLC Capital pursuant to the exercise by
the Company of its right to dissolve PLC Capital.
If, at any time, a Tax Event shall occur and be continuing, the
Company shall have the right, upon not less than 30 nor more than 60 days
notice, to redeem the Securities in whole or in part, for cash in the
amount of the Redemption Price, within 90 days following the occurrence of
such Tax Event, and, following such redemption, Trust Securities with an
aggregate liquidation amount equal to the aggregate principal amount of
the Securities so redeemed shall be redeemed by PLC Capital at the
Redemption Price on a pro rata basis; provided, however, that if at the
time there is available to the Company or the Trust the opportunity to
eliminate, within such 90 day period, the Tax Event by taking some
ministerial action, such as filing a form or making an election or
pursuing some other similar reasonable measure that has no adverse effect
on PLC Capital, the Company or the holders of the Trust Securities, the
Company or PLC Capital will pursue such measure in lieu of a redemption.
(4) The Securities are not entitled to the benefit of any sinking
fund.
(5) If Securities are distributed to the holders of the Preferred
Securities, (i) the Company will use its best efforts to cause the
Securities to be listed on
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the New York Stock Exchange or on such other exchange as the Preferred
Securities are then listed, and (ii) the Indenture, this Supplemental
Indenture No. 5 and the terms of the Securities may, thereafter, be
modified or amended with the consent of not less than 66-2/3% in principal
amount of the Securities at any time outstanding, provided, however, that
no such modification or amendment may, without the consent of the Holder
of each Security affected thereby, (a) extend the stated maturity of the
principal of any Security (other than as provided in Section 2.6 of this
Supplemental Indenture No. 5), or reduce the principal amount thereof or
reduce the rate or extend the time of payment of interest thereon (other
than as provided in Section 2.5 or this Supplemental Indenture No. 5), 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 Security
when due or (b) reduce the aforesaid principal amount of Securities, the
consent of the Holders of which is required for any such modification.
Section 2.9.Preferred Security Holders' Rights. If an Event of
Default constituting the failure to pay interest or principal on the Debentures
on the date such interest or principal is otherwise payable has occurred and is
continuing, then a holder of Preferred Securities may directly institute a
proceeding for enforcement of payment to such holder directly of the principal
of or interest on the Securities having a principal amount equal to the
aggregate liquidation amount of the Preferred Securities of such holder on or
after the respective due date specified in the Securities. The holders of
Preferred Securities will not be able to exercise directly any other remedy
available to the holders of the Securities under this Supplemental Indenture No.
5 or under the Indenture unless the Institutional Trustee fails to do so.
Section 2.10. Additional Covenants. The Company agrees that if (i)
there shall have occurred any event that would constitute an Event of Default
(as defined herein) or (ii) the Company shall be in default with respect to its
payment of any obligations under the Guarantee or Common Guarantee, or (iii) the
Company shall have given notice of its election to defer payments of interest on
such Securities by extending the interest payment period as provided in this
Supplemental Indenture No. 5 and such period, or any extension thereof, shall be
continuing, then (a) the Company shall not declare or pay any dividend on, make
any distribution with respect to, or redeem, purchase, acquire or make a
liquidation payment with respect to any of its capital stock (other than (i)
purchases or acquisitions of shares of the Company's common stock in connection
with the satisfaction by the Company of its obligations under any employee
benefit plans or the satisfaction by the Company of its obligation
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<PAGE>
pursuant to any contract or security requiring it to purchase shares of its
common stock, (ii) as a result of a reclassification of the Company's capital
stock or the exchange or conversion of one class or series of the Company's
capital stock for another class or series of its capital stock, (iii) the
purchase of fractional interests in shares of the Company's capital stock
pursuant to an acquisition or the conversion or exchange provisions of such
capital stock or the security being converted or exchanged, and (iv) redemptions
or purchases pursuant to the Company's Rights Agreement, dated August 7, 1995,
between the Company and AmSouth Bank of Alabama as Rights Agent), (b) the
Company shall not make any payment of principal, premium, if any, or interest on
or repay, repurchase or redeem any debt securities issued by the Company that
rank pari passu with or junior to the Securities and (c) the Company shall not
make any guarantee payments with respect to the foregoing (other than pursuant
to either of the Guarantees, the PLC II __% TOPrS Guarantees, the 8 1/4% TOPrS
Guarantees or the Series A Guarantee).
The Company agrees (i) to directly or indirectly maintain 100% ownership
of the Common Securities; provided, however, that any permitted successor of the
Company under the Indenture may succeed to the Company's ownership of such
Common Securities, (ii) not to voluntarily terminate, wind-up or liquidate PLC
Capital, except (a) in connection with a distribution of Securities to the
holders of the Preferred Securities in liquidation of PLC Capital, or (b) in
connection with certain mergers, consolidations or amalgamations permitted by
the Declaration of Trust and (iii) to use its reasonable efforts, consistent
with the terms and provisions of the Declaration of Trust, to cause PLC Capital
to remain a grantor trust and not to be classified as an association taxable as
a corporation for United States federal income tax purposes.
Section 2.11. Denomination. The Securities shall be issuable in
denominations of $1,000 and integral multiples thereof.
Section 2.12. Currency. Principal and interest on the Securities
shall be payable in Dollars.
Section 2.13. Registered Securities; Form. Except as provided in
Section 2.14, the Securities shall be issued as Registered Securities, without
coupons and shall be registered in the name of Wilmington Trust Company, as
Institutional Trustee, and its permitted registered assigns. The Securities
shall be substantially in the form attached as Exhibit A hereto.
Section 2.14. Global Securities Upon Liquidation of Trust.
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(a) If, in accordance with the Declaration of Trust, PLC Capital is
to be dissolved and the Securities held by the Institutional Trustee are to be
distributed to the holders of the Trust Securities:
(i) the Securities in certificated form shall be presented to the
Trustee by the Institutional Trustee in exchange for a global Security in an
aggregate principal amount equal to the aggregate principal amount of all
outstanding Securities (a "Global Security") to be registered in the name of the
Depository (as defined in the Declaration of Trust), or its nominee, and
delivered by the Trustee to the Depository for crediting to the accounts of its
participants pursuant to the instructions of the Regular Trustees (as defined in
the Declaration of Trust). The Company upon any such presentation shall execute
a Global Security in such aggregate principal amount and deliver the same to the
Trustee for authentication and delivery in accordance with the Indenture and
this Supplemental Indenture No. 5. Payments on Securities issued as Global
Securities will be made to the Depository; and
(ii) if any Preferred Securities are held in non book-entry
certificated form, the Securities in certificated form may be presented to the
Trustee by the Institutional Trustee and any Preferred Security Certificate (as
defined in the Declaration of Trust) which represents Preferred Securities other
than Preferred Securities held by the Clearing Agency (as defined in the
Declaration of Trust) or its nominee ("Non Book-Entry Preferred Securities")
will be deemed to represent beneficial interests in Securities presented to the
Trustee by the Institutional Trustee having an aggregate principal amount equal
to the aggregate liquidation amount of the Non Book-Entry Preferred Securities
until such Preferred Security Certificates are presented to the Registrar for
transfer or reissuance at which time such Preferred Security Certificates will
be canceled and a Security, registered in the name of the holder of the
Preferred Security Certificate or the transferee of the holder of such Preferred
Security Certificate, as the case may be, with an aggregate principal amount
equal to the aggregate liquidation amount of the Preferred Security Certificate
canceled, will be executed by the Company and delivered to the Trustee for
authentication and delivery in accordance with the Indenture and this
Supplemental Indenture No. 5. On issue of such Securities, Securities with an
equivalent aggregate principal amount that were presented by the Institutional
Trustee to the Trustee will be deemed to have been canceled.
(b) Unless and until it is exchanged for the Securities in
registered form, a Global Security may be transferred, in whole but not in part,
only to another nominee of the Depository, or to a successor Depository selected
or approved by the Company or to a nominee of such successor Depository.
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<PAGE>
(c) If at any time the Depository notifies the Company that it is
unwilling or unable to continue as Depository or if at any time the Depository
for such series shall no longer be registered or in good standing under the
Securities Exchange Act of 1934, as amended, or other applicable statute or
regulation, and a successor Depository for such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such condition, as the case may be, the Company will execute, and, subject to
Article III of the Indenture, the Trustee, upon written notice from the Company,
will authenticate and deliver the Securities in definitive registered form
without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Security in exchange for such
Global Security. In addition, the Company may at any time determine that the
Securities shall no longer be represented by a Global Security. In such event
the Company will execute, and subject to Section 3.3 of the Indenture, the
Trustee, upon receipt of an Officer's Certificate evidencing such determination
by the Company, will authenticate and deliver the Securities in definitive
registered form without coupons, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global Security
in exchange for such Global Security. Upon the exchange of the Global Security
for such Securities in definitive registered form without coupons, in authorized
denominations, the Global Security shall be canceled by the Trustee. Such
Securities in definitive registered form issued in exchange for the Global
Security shall be registered in such names and in such authorized denominations
as the Depository, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall deliver
such Securities to the Depository for delivery to the Persons in whose names
such Securities are so registered.
Section 2.15. Defeasance and Covenant Defeasance. The provisions of
Sections 4.4 and 4.5 of the Indenture shall apply to the Securities.
Section 2.16. Registrar and Paying Agent. The Trustee shall
initially serve as Registrar and Paying Agent.
Section 2.17. Additional Provisions Regarding Amendments. So long as
the Holder of the Securities is PLC Capital, the terms of the Securities may be
amended by mutual consent of the Company and PLC Capital in the manner they
shall agree; provided, however, that, so long as any of the Preferred Securities
remain outstanding, no such amendment shall be made that adversely affects the
holders of the Preferred Securities, no termination of the Securities shall
occur, and no Event of Default or compliance with any covenant under the
Securities may be waived by PLC Capital, without the prior approval of the
holders of at least 66-2/3% in liquidation
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preference of all Preferred Securities then outstanding, in writing or at a duly
constituted meeting of such holders.
Section 2.18. Additional Provisions Regarding Assignment. The
Company shall have the right at all times to assign any of its rights or
obligations under the Securities to a direct or indirect wholly-owned subsidiary
of the Company; provided, however, that, in the event of any such assignment,
the Company shall remain jointly and severally liable for all such obligations.
So long as PLC Capital is the Holder of the Securities, PLC Capital may not
assign any of its rights under the Securities, other than in connection with a
merger or consolidation or sale of assets or exchange permitted under the terms
of the Preferred Securities. Subject to the foregoing, the Securities shall be
binding upon and inure to the benefit of the Company and PLC Capital and their
respective permitted successors and assigns. Any assignment by the Company or
PLC Capital in contravention of such provisions will be null and void.
Section 2.19. Miscellaneous Expenses.
(a) In connection with the offering, sale and issuance of the
Securities to the Institutional Trustee and in connection with the sale of the
Trust Securities by PLC Capital, the Company, in its capacity as borrower with
respect to the Securities, shall pay (i) all costs and expenses relating to the
offering, sale and issuance of the Trust Securities and the Securities,
including commissions to the underwriters payable pursuant to the Purchase
Agreement and compensation of the Trustee under the Indenture, (ii) all costs
and expenses of PLC Capital (including, but not limited to, costs and expenses
relating to the organization of PLC Capital, the offering sale and issuance of
the Trust Securities (including commissions to the underwriters in connection
therewith), the fees and expenses of the Institutional Trustee and the Delaware
Trustee, the costs and expenses relating to the operation of the PLC Capital,
including, without limitation, costs and expenses of accountants, attorneys,
statistical or bookkeeping services, expenses for printing and engraving and
computing or accounting equipment, paying agent(s), registrar(s), transfer
agent(s), duplicating, travel and telephone and other telecommunications
expenses and costs and expenses incurred in connection with the acquisition,
financing, and disposition of PLC Capital's assets), and (iii) the enforcement
by the Institutional Trustee (as defined in the Declaration of Trust) of the
rights of the holders of the Preferred Securities. The Company fully and
unconditionally guarantees the payment of such expenses.
(b) If at any time PLC Capital shall be required to pay any taxes,
duties, assessments or governmental charges of whatever nature (other than
withholding
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<PAGE>
taxes) imposed by the United States, or any other domestic taxing authority,
then, in any such case, the Company agrees to pay, as additional interest
("Additional Interest") such additional amounts as shall be required so that the
net amounts received and retained by PLC Capital with respect to the Securities
after paying any such taxes, duties, assessments or other governmental charges,
as well as all liabilities, costs and expenses of PLC Capital with respect to
any such items, will be not less than the amounts PLC Capital would have
received had no such taxes, duties, assessments or other governmental charges
been imposed and no such liabilities, costs and expenses with respect thereto
been incurred.
ARTICLE 3
Miscellaneous Provisions
Section 3.1. The Indenture, as supplemented and amended by this
Supplemental Indenture No. 5, is in all respects hereby adopted, ratified and
confirmed.
Section 3.2. This Supplemental Indenture No. 5 may be executed in
any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
SECTION 3.3. THIS SUPPLEMENTAL INDENTURE NO. 5 AND EACH SECURITY
SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK
AND SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture No. 5 to be duly executed, as of the day and year first written above.
PROTECTIVE LIFE CORPORATION
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
[Seal]
Attest:
------------------------
Name:
Title:
AMSOUTH BANK, Trustee
By:
--------------------------------
Name:
Title:
[Seal]
Attest:
------------------------
Name:
Title:
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<PAGE>
Exhibit A
FORM OF FACE OF SERIES _ SUBORDINATED DEBENTURE
THIS SERIES _ SUBORDINATED DEBENTURE IS REGISTERED IN THE NAME OF
WILMINGTON TRUST COMPANY, AS INSTITUTIONAL TRUSTEE, AND MAY NOT BE
TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF OTHER THAN AS PERMITTED
IN THE SUPPLEMENTAL INDENTURE NO. 5 DATED AS OF__________, 199_, A
COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY.
ARTICLE VIII
FORM OF DEBENTURE
[IF THE DEBENTURE IS TO BE A GLOBAL SECURITY INSERT-This
Subordinated Debenture is Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depository or a
nominee of the Depository. This Subordinated Debenture is exchangeable for
Subordinated Debentures registered in the name of a person other than the
Depository or its nominee only in the limited circumstances described in the
Indenture, and no transfer of this Subordinated Debenture (other than a transfer
of this Subordinated Debenture as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository) may be registered except in limited circumstances.
Unless this Subordinated Debenture is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the issuer or its agent for registration of transfer, exchange or
payment, and any Subordinated Debenture issued is registered in the name of Cede
& Co. or such other name as requested by an authorized representative of the
Depository Trust Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.]
<PAGE>
PROTECTIVE LIFE CORPORATION
___% Subordinated Debentures
Due__________, 20__, Series __
No. 1 $__________
PROTECTIVE LIFE CORPORATION, a corporation duly organized and
existing under the laws of the State of Delaware (herein called the "Company",
which term includes any successor corporation under the Indenture (as defined on
the reverse hereof)), for value received, hereby promises to pay to
______________________, the principal sum of $_________ on__________, 20__ (such
date, and any other such other date to which the stated maturity of this
Subordinated Debenture may be shortened or extended, as described below, is
hereinafter referred to as the "Stated Maturity") and to pay interest thereon
from. Interest shall be payable on this Subordinated Debenture, in arrears, on
March 31, June 30, September 30 and December 31 of each year (each an "Interest
Payment Date") commencing __________, 199_, at the rate of ___% per annum, until
the principal hereof is paid or made available for payment; provided that any
such installment of interest, which is overdue shall bear interest at the rate
of ___% per annum (to the extent that the payment of such interest shall be
legally enforceable) from the dates such amounts are due until they are paid or
made available for payment, and such interest shall be payable on demand;
provided further that, notwithstanding anything contained in the Indenture and
Supplemental Indenture No. 5 (as defined on the reverse hereof) to the contrary,
the Company shall have the right at any time, and from time to time, during the
term of this Subordinated Debenture to defer payments of interest by extending
the interest payment period to the next Interest Payment Date by one or more
quarterly periods not exceeding 20 consecutive quarters (each such period, an
"Extension Period"), but no such Extension Period may extend beyond __________,
20__, or such other date to which the Stated Maturity may have been shortened or
extended as described below. At the end of any such Extension Period, the
Company shall pay all interest then accrued and unpaid (including any Additional
Interest, as hereinafter defined) together with interest thereon compounded
quarterly at the rate specified for this Subordinated Debenture to the extent
permitted by applicable law; provided, that during any such Extension Period,
(a) the Company shall not declare or pay dividends on, make any distribution
with respect to, or redeem, purchase, acquire or make a liquidation payment with
respect to any of its capital stock (other than (i) purchases or acquisitions of
shares of the Company's common stock in connection with
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the satisfaction by the Company of its obligations under any employee benefit
plans or the satisfaction by the Company of its obligation pursuant to any
contract or security requiring it to purchase shares of its common stock, (ii)
as a result of a reclassification of the Company's capital stock or the exchange
or conversion of one class or series of the Company's capital stock for another
class or series of its capital stock, (iii) the purchase of fractional interests
in shares of the Company's capital stock pursuant to an acquisition or the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged, and (iv) redemptions or purchases pursuant to the
Company's Rights Agreement, dated August 7, 1995, between the Company and
AmSouth Bank of Alabama as Rights Agent), (b) the Company shall not make any
payment of principal, premium, if any, or interest on or repay, repurchase or
redeem any debt securities issued by the Company that rank pari passu with or
junior to the Securities (as defined in Supplemental Indenture No. 5) and (c)
the Company shall not make any guarantee payments with respect to the foregoing
(other than pursuant to the Preferred Securities Guarantee, dated as of
__________, 199_ of the Company (the "Guarantee") with respect to the ___% Trust
Originated Preferred Securities (the "Preferred Securities") issued by PLC
Capital Trust III ("PLC Capital"), the Common Securities Guarantee, dated as of
__________, 199_ of the Company (the "Common Guarantee," and together with the
Guarantee, the "Guarantees") with respect to the ___% Trust Originated Common
Securities (the "Common Securities," and together with the Preferred Securities,
the "Trust Securities") issued by PLC Capital, the Preferred Securities
Guarantee Agreement, dated as of __________, 199_, of the Company, with respect
to the __% Trust Originated Preferred Securities of PLC Capital Trust II and the
Common Securities Guarantee Agreement, dated as of __________, 199_, of the
Company, with respect to the __% Trust Originated Common Securities of PLC
Capital Trust II (together, the "PLC II __% TOPrS Guarantees"), the Preferred
Securities Guarantee Agreement, dated April 29, 199_, of the Company, with
respect to the 8 1/4% Trust Originated Preferred Securities of PLC Capital Trust
I, the Common Securities Guarantee Agreement, dated as of April 29, 199_, of the
Company with respect to the 8 1/4% Trust Originated Common Securities of PLC
Capital Trust I (together the "8 1/4% TOPrS Guarantees") and the Guarantee
Agreement, dated as of June 9, 1994 of the Company (the "Series A Guarantee")
with respect to the 9% Cumulative Monthly Income Preferred Securities, Series A
of PLC Capital L.L.C.). Prior to the termination of any such Extension Period,
the Company may further defer payments of interest by extending the interest
payment period; provided, however, that, such Extension Period, including all
such previous and further extensions, may not exceed 20 consecutive quarters or
beyond the Stated Maturity. Upon the termination of any Extension Period and the
payment of all amounts then due, the Company may commence a new Extension
Period, subject to the terms set forth below. No interest shall be due and
payable during any Extension Period, except
3
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at the end thereof, but the Company may prepay at any time all or any portion of
the interest accrued during any Extension Period. If the Institutional Trustee
(as defined in the Amended and Restated Declaration of Trust of PLC Capital (the
"Declaration of Trust") shall be the sole holder of the Securities, the Company
shall give the Regular Trustees (as defined in the Declaration of Trust) and the
Institutional Trustee (as defined in the Declaration of Trust), notice of its
selection of such Extension Period one Business Day prior to the earlier of (i)
the date distributions on the Preferred Securities are payable or (ii) the date
the Regular Trustees are required to give notice of the record date or the date
such distribution is payable to the New York Stock Exchange (or other applicable
self-regulatory organization) or to holders of the Preferred Securities, but in
any event at least one Business Day before such record date. If the
Institutional Trustee shall not be the sole holder of the Securities, the
Company shall give the holders of the Securities notice of its selection of such
Extension Period at least 10 Business Days prior to the earlier of (i) the
Interest Payment Date or (ii) the date upon which the Company is required to
give notice of the record or payment date of such interest payment to the New
York Stock Exchange (or other applicable self-regulatory organization) or to
holders of the Securities. The quarter in which any notice is given in
accordance with the foregoing provisions shall be counted as one of the 20
quarters permitted in the maximum Extension Period permitted hereunder.
The Company shall have the right to (i) shorten the Stated
Maturity of the principal of this Subordinated Debenture at any time to any
date not earlier than __________, 20__, and (ii) extend the stated maturity
of the principal of this Subordinated Debenture at any time at its election
for one or more periods, but in no event to a date later than __________,
20__; provided that, if the Company elects to exercise its right to extend
the Stated Maturity of the principal of this Subordinated Debenture pursuant
to clause (ii), above, at the time such election is made and at the time of
extension (A) the Company is not in bankruptcy, otherwise insolvent or in
liquidation, (B) the Company is not in default in the payment of any interest
or principal on the Securities, (C) in the case of the Securities held by PLC
Capital, PLC Capital is not in arrears on payments of Distributions (as
defined in the Amended and Restated Declaration of Trust of PLC Capital) on
the ___% Trust Originated Preferred Securities of PLC Capital and no deferred
Distributions are accumulated and (D) the Securities are rated not less than
BBB- by Standard & Poor's Ratings Services or Baa3 by Moody's Investors
Service, Inc. or the equivalent by any other nationally recognized
statistical rating organization; provided, further, that the Company may at
any time irrevocably waive its right to extend the Stated Maturity date. In
the event the Company elects to shorten or extend the Stated Maturity of the
Securities or to irrevocably waive its right to extend the Stated Maturity of
the Securities, it shall give notice to the Trustee, and the Trustee shall
give notice of such shortening or
4
<PAGE>
extension or waiver to the Holder hereof, no less than 30 and no more than 90
days prior to the effectiveness thereof.
The amount of interest payable on any Interest Payment Date shall be
computed on the basis of twelve 30-day months and a 360-day year and, for any
period that is shorter than a full 90-day quarter, will be calculated on the
basis of the actual number of days elapsed in such period. In the event that any
date on which interest is payable on this Security is not a Business Day, then
payment of the interest payable on such date will be made on the next succeeding
day which is a Business Day (and without any interest or other payment in
respect of any such delay), except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date. The interest so payable on any Interest Payment Date which is
punctually paid or duly provided for on any Interest Payment Date will, as
provided in the Indenture referred to on the reverse hereof, be paid to the
Person in whose name this Subordinated Debenture is registered at the close of
business on the Regular Record Date for such Interest Payment Date, which shall
be the Business Day next preceding such Interest Payment Date. Any such interest
not so punctually paid or duly provided for will forthwith cease to be payable
to the Person in whose name this Security is registered on the relevant Regular
Record Date, and such defaulted interest shall instead be payable to the person
in whose name this Subordinated Debenture is registered on the special record
date for such defaulted interest or other specified date determined in
accordance with the Indenture and the Supplemental Indenture No. 5 referred to
on the reverse hereof.
Payment of the principal of and any such interest on this
Subordinated Debenture will be made at the Corporate Trust Office of the
Trustee, in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts, provided,
however, that at the option of the Company payment of interest may be paid (i)
by check mailed to the address of the person entitled thereto as such address
shall appear in the Register of Holders of the Subordinated Debentures or (ii)
by wire transfer to an account maintained by the Person entitled thereto as
specified in the Register of Holders of the Securities.
Reference is hereby made to the further provisions of this
Subordinated Debenture set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Subordinated
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<PAGE>
Debenture shall not be entitled to any benefit under the Indenture and
Supplemental Indenture No. 5 referred to on the reverse hereof or be valid or
obligatory for any purpose.
6
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated:
PROTECTIVE LIFE CORPORATION
By
------------------------------
By
------------------------------
[CORPORATE SEAL]
This is one of the Securities of the series described in the
within-mentioned Indenture.
AMSOUTH BANK, as Trustee
By
------------------------------
Authorized Signatory
7
<PAGE>
[FORM OF REVERSE OF SERIES _ SUBORDINATED DEBENTURE]
This Subordinated Debenture is one of a duly authorized issue of
securities of the Company (herein called the "Securities"), issued and to be
issued in one or more series under a Subordinated Indenture, dated as of June 1,
1994 (herein, together with all indentures supplemental thereto, including
Supplemental Indenture No. 1, dated as of June 9, 1994, Supplemental Indenture
No. 2, dated August 1, 1994, Supplemental Indenture No. 3, dated April 29, 1997,
Supplemental Indenture No. 4, dated __________, 199_ and Supplemental Indenture
No. 5, dated __________, 199_, called the "Indenture"), from the Company to
AmSouth Bank (as successor by merger to AmSouth Bank of Alabama, successor by
conversion of charter to AmSouth Bank N.A.) (herein called the "Trustee", which
term includes any successor trustee under the Indenture), to which Indenture
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee, the
holders of Senior Indebtedness and the Holders of the Securities and of the
terms upon which the Securities are, and are to be, authenticated and delivered.
This Security is one of the series designated on the face hereof, limited in
aggregate principal amount to $__________ and is issued pursuant to Supplemental
Indenture No. 5, dated as of __________, 199_ from the Company to the Trustee,
relating to the Securities of this series (herein called "Supplemental Indenture
No. 5").
The indebtedness evidenced by this Security is to the extent
provided in the Indenture, subordinate and junior in right of payment to all
Senior Indebtedness, and this Security is issued subject to the provisions of
the Indenture with respect thereto. Each holder of this Security, by accepting
the same, (a) agrees to and shall be bound by such provisions, (b) authorizes
and directs the Trustee on his behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination so provided and (c)
appoints the Trustee his attorney-in-fact for any and all such purposes. Each
Holder hereof, by his acceptance hereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and in the Indenture
by each holder of Senior Indebtedness, whether now outstanding or hereafter
incurred, and waives reliance by each such holder upon said provisions.
The Securities of this series are subject to redemption at any time
in whole or from time to time in part, on or after __________, 20__, but prior
to their stated maturity (or such other date to which the stated maturity of
this Subordinated Debenture may be shortened or extended, as described on the
face of this Subordinated Debenture), or, in whole at any time or in part from
time to time if a Tax Event shall have occurred, upon not less than 30 nor more
than 60 days notice, at a redemption
8
<PAGE>
price equal to 100% of the principal amount to be redeemed plus any accrued and
unpaid interest, including Additional Interest, if any, to the redemption date
within 90 days following the occurrence of such Tax Event; provided, however,
that if at the time there is available to the Company or PLC Capital the
opportunity to eliminate, within such 90 day period, the Tax Event by taking
some ministerial action, such as filing a form or making an election or pursuing
some other similar reasonable measure that has no adverse effect on PLC Capital,
the Company or the holders of the Trust Securities, the Company or PLC Capital
will pursue such measure in lieu of redemption.
In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
If an Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture.
The Indenture contains provisions for defeasance at any time of the
indebtedness of this Security or of certain restrictive covenants and Events of
Default with respect to this Security, in each case upon compliance by the
Company with certain conditions set forth therein, which provisions apply to
this Security.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of at least a majority in aggregate principal amount of
the Securities at the time out standing of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of the Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture or to Supplemental Indenture
No. 5 and no provision of this Security or of the Indenture or of Supplemental
Indenture No. 5 shall alter or impair the obligation of the Company, which is
absolute and
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<PAGE>
unconditional, to pay the principal of, and interest on, this Security at the
times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations as
therein set forth, the transfer of this Security is registrable in the Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and interest on this
Security are payable, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company, the Trustee and the Registrar
duly executed by the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Securities of this series and of like tenor, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the person in whose name this Security is registered as the owner
hereof for all purposes, whether or not the Security be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Company and the Holder of this Security agree (i) that for
United States federal, state and local tax purposes it is intended that this
Security constitute indebtedness and (ii) to file all United States federal,
state and local tax returns and reports on such basis (unless the Company or
such Holder, as the case may be, shall have received an opinion of independent
nationally recognized tax counsel to the effect that as a result of a change in
law after the date of the issuance of this Security the Company or such Holder,
as the case may be, is prohibited from filing on such basis).
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
10
<PAGE>
EXHIBIT 4(o)
Draft--July 7, 1997
================================================================================
PROTECTIVE LIFE CORPORATION
to
AMSOUTH BANK
(as successor by merger to AmSouth Bank
of Alabama, successor by conversion of charter
to AmSouth Bank N.A.), as Trustee
--------------------
SUPPLEMENTAL INDENTURE No. 6
Dated as of __________, 199_
--------------------
___% Subordinated Debentures
Due 20__, Series _
$ __________
================================================================================
<PAGE>
PROTECTIVE LIFE CORPORATION
SUPPLEMENTAL INDENTURE No. 6
$ __________
___% Subordinated Debentures
Due 20__, Series _
SUPPLEMENTAL INDENTURE No. 6, dated as of __________, 199_ from
PROTECTIVE LIFE CORPORATION, a Delaware corporation (the "Company"), to AMSOUTH
BANK (as successor by merger to AmSouth Bank of Alabama, successor by conversion
of charter to AmSouth Bank N.A.), as trustee (the "Trustee").
Recitals
The Company has heretofore executed and delivered to the Trustee a
Subordinated Indenture, dated as of June 1, 1994 as supplemented and amended by
Supplemental Indenture No. 1, dated as of June 9, 1994, Supplemental Indenture
No. 2, dated as of August 1, 1994, Supplemental Indenture No. 3, dated as of
April 29, 1997, Supplemental Indenture No. 4, dated as of __________, 199_ and
Supplemental Indenture No. 5, dated as of _______, 199_ (as so supplemented and
amended, the "Indenture"), providing for the issuance from time to time of
series of the Company's Securities.
Section 3.1 of the Indenture provides for various matters with
respect to any series of Securities issued under the Indenture to be established
in an indenture supplemental to the Indenture.
Section 8.1(7) of the Indenture provides for the Company and the
Trustee to enter into an indenture supplemental to the Indenture to establish
the form or terms of Securities of any series as provided by Sections 2.1 and
3.1 of the Indenture.
<PAGE>
For and in consideration of the premises and the issuance of the
series of Securities provided for herein, it is mutually covenanted and agreed
as follows for the equal and ratable benefit of the Holders of the Securities of
such series:
ARTICLE 1
Relation to Indenture; Definitions
Section 1.1. This Supplemental Indenture No. 6 constitutes an
integral part of the Indenture.
Section 1.2. For all purposes of this Supplemental Indenture No. 6:
(1) Capitalized terms used herein without definition shall have the
meanings specified in the Indenture;
(2) All references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this
Supplemental Indenture No. 6; and
(3) The terms "herein", "hereof", "hereunder" and other words of
similar import refer to this Supplemental Indenture No. 6.
ARTICLE 2
The Series of Securities
Section 2.1. Title of the Securities. There shall be a series of
Securities designated the "___% Subordinated Debentures Due 20__, Series _"
(hereinafter, the "Securities").
Section 2.2. Limitation on Aggregate Principal Amount; Date of
Securities. The aggregate principal amount of the Securities shall be limited to
$__________. Each Security shall be dated the date of its authentication.
2
<PAGE>
Section 2.3. Principal Payment Dates. Subject to Section 2.6, the
principal amount of the Securities Outstanding (together with any accrued and
unpaid interest thereon) shall be payable in a single installment on __________,
20__.
Section 2.4. Interest and Interest Rates. The rate of interest on
each Security shall be ___% per annum, accruing from _________, 1997 and,
subject to Section 2.5, interest shall be payable, in arrears, on March 31, June
30, September 30 and December 31 of each year (each an "Interest Payment Date"),
commencing __________, 1997. The amount of interest payable on any Interest
Payment Date shall be computed on the basis of twelve 30-day months and a
360-day year and, for any period that is shorter than a full 90-day quarter,
will be calculated on the basis of the actual number of days elapsed in such
period. In the event that any date on which interest is payable on a Security is
not a Business Day, then payment of the interest payable on such date will be
made on the next succeeding day which is a Business Day (and without any
interest or other payment in respect of any such delay), except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date. The interest so payable on any Security which is
punctually paid or duly provided for on any Interest Payment Date shall be paid
to the Person in whose name such Security is registered at the close of business
on the Regular Record Date for such Interest Payment Date, which, for purposes
of this Supplemental Indenture No. 4, shall be the Business Day preceding such
Interest Payment Date; provided, that in the event the Securities shall not
continue to remain in book-entry only form, the record dates shall be the March
15, June 15, September 15 and December 15 prior to the applicable Interest
Payment Date. The interest so payable on any Security which is not punctually
paid or duly provided for on any Interest Payment Date shall forthwith cease to
be payable to the Person in whose name such Security is registered on the
relevant Regular Record Date, and such defaulted interest shall instead be
payable to the Person in whose name such Security is registered on the special
record date or other specified date determined in accordance with the Indenture.
Section 2.5. Extension of Interest Payment Period. Notwithstanding
anything contained herein or in the Indenture to the contrary, the Company shall
have the right at any time, and from time to time, during the term of the
Securities to defer payments of interest by extending the interest payment
period to the next Interest Payment Date by one or more quarterly periods not
exceeding 20 consecutive quarters (each such period, an "Extension Period"), but
no such Extension Period may extend beyond __________, 20__, or such other date
to which the Stated Maturity may have been shortened or extended pursuant to
Section 2.6. At the end of any such Extension
3
<PAGE>
Period, the Company shall pay all interest then accrued and unpaid (including
any Additional Interest, as hereinafter defined) together with interest thereon
compounded quarterly at the rate specified for the Securities to the extent
permitted by applicable law ("Compound Interest"); provided, that during any
such Extension Period, (a) the Company shall not declare or pay dividends on,
make any distribution with respect to, or redeem, purchase, acquire or make a
liquidation payment with respect to any of its capital stock (other than (i)
purchases or acquisitions of shares of the Company's common stock in connection
with the satisfaction by the Company of its obligations under any employee
benefit plans or the satisfaction by the Company of its obligation pursuant to
any contract or security requiring it to purchase shares of its common stock,
(ii) as a result of a reclassification of the Company's capital stock or the
exchange or conversion of one class or series of the Company's capital stock for
another class or series of its capital stock, (iii) the purchase of fractional
interests in shares of the Company's capital stock pursuant to an acquisition or
the conversion or exchange provisions of such capital stock or the security
being converted or exchanged, and (iv) redemptions or purchases pursuant to the
Company's Rights Agreement, dated August 7, 1995, between the Company and
AmSouth Bank of Alabama as Rights Agent), (b) the Company shall not make any
payment of principal, premium, if any, or interest on or repay, repurchase or
redeem any debt securities issued by the Company that rank pari passu with or
junior to the Securities and (c) the Company shall not make any guarantee
payments with respect to the foregoing (other than pursuant to the Preferred
Securities Guarantee, dated as of __________, 199_ of the Company (the
"Guarantee") with respect to the ___% Trust Originated Preferred Securities (the
"Preferred Securities") issued by PLC Capital Trust IV ("PLC Capital"), the
Common Securities Guarantee, dated as of __________, 199_ of the Company (the
"Common Guarantee," and together with the Guarantee, the "Guarantees") with
respect to the ___% Trust Originated Common Securities (the "Common Securities,"
and together with the Preferred Securities, the "Trust Securities") issued by
PLC Capital, the Preferred Securities Guarantee Agreement, dated as of ___,
199_, of the Company, with respect to the _% Trust Originated Preferred
Securities of PLC Capital Trust III and the Common Securities Guarantee
Agreement, dated as of ____, 199_, of the Company, with respect to the _% Trust
Originated Common Securities of PLC Capital Trust III (together the "PLC III _%
TOPrS Guarantees"), the Preferred Securities Guarantee Agreement, dated as of
___, 199_, of the Company, with respect to the _% Trust Originated Preferred
Securities of PLC Capital Trust II and the Common Securities Guarantee
Agreement, dated as of ____, 199_, of the Company, with respect to the _% Trust
Originated Common Securities of PLC Capital Trust II (together the "PLC II _%
TOPrS Guarantees"), the Preferred Securities Guarantee Agreement, dated April
29, 1997, of the Company, with respect to the 8 1/4% Trust Originated Preferred
Securities of PLC Capital Trust I, the Common Securities Guarantee Agreement,
dated
4
<PAGE>
as of April 29, 1997, of the Company with respect to the 8 1/4% Trust Originated
Common Securities of PLC Capital Trust I (together the "8 1/4% TOPrS
Guarantees") and the Guarantee Agreement, dated as of June 9, 1994 of the
Company (the "Series A Guarantee") with respect to the 9% Cumulative Monthly
Income Preferred Securities, Series A of PLC Capital L.L.C.). Prior to the
termination of any such Extension Period, the Company may further defer payments
of interest by extending the interest payment period; provided, however, that,
such Extension Period, including all such previous and further extensions, may
not exceed 20 consecutive quarters or beyond the Stated Maturity. Upon the
termination of any Extension Period and the payment of all amounts then due, the
Company may commence a new Extension Period, subject to the terms set forth in
this section. No interest shall be due and payable during any Extension Period,
except at the end thereof, but the Company may prepay at any time all or any
portion of the interest accrued during an Extension Period. If the Institutional
Trustee (as defined in the Amended and Restated Declaration of Trust of PLC
Capital, dated as of __________, 199_ (the "Declaration of Trust")) shall be the
sole holder of the Securities, the Company shall give the Regular Trustees (as
defined in the Declaration of Trust) and the Institutional Trustee (as defined
in the Declaration of Trust), notice of its selection of such Extension Period
one Business Day prior to the earlier of (i) the date distributions on the
Preferred Securities are payable or (ii) the date the Regular Trustees are
required to give notice of the record date or the date such distribution is
payable to the New York Stock Exchange (or other applicable self-regulatory
organization) or to holders of the Preferred Securities, but in any event at
least one Business Day before such record date. If the Institutional Trustee
shall not be the sole holder of the Securities, the Company shall give the
holders of the Securities notice of its selection of such Extension Period at
least 10 Business Days prior to the earlier of (i) the Interest Payment Date or
(ii) the date upon which the Company is required to give notice of the record or
payment date of such interest payment to the New York Stock Exchange (or other
applicable self-regulatory organization) or to holders of the Securities. The
quarter in which any notice is given pursuant to this Section 2.5 shall be
counted as one of the 20 quarters permitted in the maximum Extension Period
permitted hereunder.
Section 2.6. Shortening or Extension of Stated Maturity.
Notwithstanding anything contained herein or in the Indenture to the
contrary, the Company shall have the right to (i) shorten the Stated Maturity
of the principal of the Securities at any time to any date not earlier than
__________, 20__, and (ii) extend the Stated Maturity of the principal of the
Securities at any time at its election for one or more periods, but in no
event to a date later than __________, 20__; provided that, if the Company
elects to exercise its right to extend the Stated Maturity of the principal
of the Securities pursuant to clause (ii), above, at the time such election
is made and at the
5
<PAGE>
time of extension (A) the Company is not in bankruptcy, otherwise insolvent
or in liquidation, (B) the Company is not in default in the payment of any
interest or principal on the Securities, (C) in the case of the Securities
held by PLC Capital, PLC Capital is not in arrears on payments of
Distributions (as defined in the Declaration of Trust) on the Preferred
Securities and no deferred Distributions are accumulated and (D) the
Securities are rated not less than BBB- by Standard & Poor's Ratings Services
or Baa3 by Moody's Investors Service, Inc. or the equivalent by any other
nationally recognized statistical rating organization; provided, further,
that the Company may at any time irrevocably waive its right to extend the
Stated Maturity date. In the event the Company elects to shorten or extend
the Stated Maturity of the Securities or to irrevocably waive its right to
extend the Stated Maturity of the Securities, it shall give notice to the
Trustee, and the Trustee shall give notice of such shortening or extension or
waiver to the Holders of the Securities, no less than 30 and no more than 90
days prior to the effectiveness thereof.
Section 2.7. Place of Payment. The Place of Payment where the
Securities issued in certificated form may be presented or surrendered for
payment, where such Securities may be surrendered for registration of transfer
or exchange and where notices and demands to and upon the Company in respect of
such Securities and the Indenture may be served shall be the Corporate Trust
Office of the Trustee; provided, however, that payment of interest may be made
at the option of the Company by checks mailed to the Holders at such addresses
as shall appear in the Register. Notwithstanding the foregoing, so long as the
Holder of any Securities is the Institutional Trustee, the payment of the
principal of and interest (including Compound Interest and Additional Interest,
if any) on such Securities held by the Institutional Trustee will be made at
such place and to such account as may be designated by the Institutional
Trustee.
Section 2.8. Redemption. Subject to the terms and conditions of
Article 10 of the Indenture:
(1) Optional Redemption. The Company may redeem the Securities in
whole at any time or in part from time to time, in each case on or after
__________, 20__, but prior to the Stated Maturity, upon not less than 30
nor more than 60 days' notice, at a redemption price equal to 100% of the
principal amount of the Securities to be redeemed plus any accrued and
unpaid interest, including Additional Interest, if any, to the date fixed
for redemption (the "Redemption Price").
(2) The Company will have the right at any time to dissolve PLC
Capital and cause the Securities to be distributed to the holders of the
Trust Securities in accordance with the Declaration of Trust.
6
<PAGE>
(3) Tax Event Redemption. "Tax Event" means the receipt by the
Company of an opinion of nationally recognized independent tax counsel
experienced in such matters to the effect that, as a result of (i) any
amendment to, or change (including any announced prospective change)
in, on or after the day before the date of issuance of the Preferred
Securities under the Declaration, the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein or (ii) any interpretation or application
of, or pronouncement with respect to, such laws or regulations by any
legislative body, court, governmental agency or regulatory authority,
which amendment or change is effective or which interpretation,
application or pronouncement is announced on or after the day before
the date of issuance of the Preferred Securities under the Declaration,
there is more than an insubstantial increase in the risk (x) that PLC
Capital is, or will be within 90 days of the date thereof, subject to
United States federal income tax with respect to income received or
accrued on the Securities and that PLC Capital would be subject to
United States federal income tax if the Securities were distributed to
the holders of the Trust Securities in liquidation of such holders'
interests in PLC Capital pursuant to the exercise by the Company of its
right to dissolve PLC Capital, (y) that interest payable by the Company
on the Securities is not, or within 90 days of the date thereof, will
not be, deductible, in whole or in part, for United States federal
income tax purposes, even if the Securities were distributed to the
holders of the Trust Securities in liquidation of such holders'
interests in PLC Capital pursuant to the exercise by the Company of its
right to dissolve PLC Capital or (z) that PLC Capital is, or will be
within 90 days of the date thereof, subject to more than a de minimis
amount of other taxes, duties or other governmental charges and that
PLC Capital would be subject to more than a de minimis amount of taxes,
duties or other governmental charges if the Securities were distributed
to the holders of the Trust Securities in liquidation of such holders'
interests in PLC Capital pursuant to the exercise by the Company of its
right to dissolve PLC Capital.
If, at any time, a Tax Event shall occur and be continuing, the
Company shall have the right, upon not less than 30 nor more than 60 days
notice, to redeem the Securities in whole or in part, for cash in the
amount of the Redemption Price, within 90 days following the occurrence of
such Tax Event, and, following such redemption, Trust Securities with an
aggregate liquidation amount equal to the aggregate principal amount of
the Securities so redeemed shall be redeemed by PLC Capital at the
Redemption Price on a pro rata basis; provided, however, that if at the
time there is available to the Company or the Trust the opportunity to
eliminate, within such 90 day period, the Tax Event by
7
<PAGE>
taking some ministerial action, such as filing a form or making an
election or pursuing some other similar reasonable measure that has no
adverse effect on PLC Capital, the Company or the holders of the Trust
Securities, the Company or PLC Capital will pursue such measure in lieu of
a redemption.
(4) The Securities are not entitled to the benefit of any sinking
fund.
(5) If Securities are distributed to the holders of the Preferred
Securities, (i) the Company will use its best efforts to cause the
Securities to be listed on the New York Stock Exchange or on such other
exchange as the Preferred Securities are then listed, and (ii) the
Indenture, this Supplemental Indenture No. 6 and the terms of the
Securities may, thereafter, be modified or amended with the consent of not
less than 66-2/3% in principal amount of the Securities at any time
outstanding, provided, however, that no such modification or amendment
may, without the consent of the Holder of each Security affected thereby,
(a) extend the stated maturity of the principal of any Security (other
than as provided in Section 2.6 of this Supplemental Indenture No. 6), or
reduce the principal amount thereof or reduce the rate or extend the time
of payment of interest thereon (other than as provided in Section 2.5 or
this Supplemental Indenture No. 6), 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 Security when due or (b) reduce the
aforesaid principal amount of Securities, the consent of the Holders of
which is required for any such modification.
Section 2.9. Preferred Security Holders' Rights. If an Event of
Default constituting the failure to pay interest or principal on the Debentures
on the date such interest or principal is otherwise payable has occurred and is
continuing, then a holder of Preferred Securities may directly institute a
proceeding for enforcement of payment to such holder directly of the principal
of or interest on the Securities having a principal amount equal to the
aggregate liquidation amount of the Preferred Securities of such holder on or
after the respective due date specified in the Securities. The holders of
Preferred Securities will not be able to exercise directly any other remedy
available to the holders of the Securities under this Supplemental Indenture No.
6 or under the Indenture unless the Institutional Trustee fails to do so.
Section 2.10. Additional Covenants. The Company agrees that if (i)
there shall have occurred any event that would constitute an Event of Default
(as defined herein) or (ii) the Company shall be in default with respect to its
payment of
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any obligations under the Guarantee or Common Guarantee, or (iii) the Company
shall have given notice of its election to defer payments of interest on such
Securities by extending the interest payment period as provided in this
Supplemental Indenture No. 6 and such period, or any extension thereof, shall be
continuing, then (a) the Company shall not declare or pay any dividend on, make
any distribution with respect to, or redeem, purchase, acquire or make a
liquidation payment with respect to any of its capital stock (other than (i)
purchases or acquisitions of shares of the Company's common stock in connection
with the satisfaction by the Company of its obligations under any employee
benefit plans or the satisfaction by the Company of its obligation pursuant to
any contract or security requiring it to purchase shares of its common stock,
(ii) as a result of a reclassification of the Company's capital stock or the
exchange or conversion of one class or series of the Company's capital stock for
another class or series of its capital stock, (iii) the purchase of fractional
interests in shares of the Company's capital stock pursuant to an acquisition or
the conversion or exchange provisions of such capital stock or the security
being converted or exchanged, and (iv) redemptions or purchases pursuant to the
Company's Rights Agreement, dated August 7, 1995, between the Company and
AmSouth Bank of Alabama as Rights Agent), (b) the Company shall not make any
payment of principal, premium, if any, or interest on or repay, repurchase or
redeem any debt securities issued by the Company that rank pari passu with or
junior to the Securities and (c) the Company shall not make any guarantee
payments with respect to the foregoing (other than pursuant to either of the
Guarantees, the PLC III __% TOPrS Guarantees, the PLC II __% TOPrS Guarantees,
the 8 1/4% TOPrS Guarantees or the Series A Guarantee).
The Company agrees (i) to directly or indirectly maintain 100% ownership
of the Common Securities; provided, however, that any permitted successor of the
Company under the Indenture may succeed to the Company's ownership of such
Common Securities, (ii) not to voluntarily terminate, wind-up or liquidate PLC
Capital, except (a) in connection with a distribution of Securities to the
holders of the Preferred Securities in liquidation of PLC Capital, or (b) in
connection with certain mergers, consolidations or amalgamations permitted by
the Declaration of Trust and (iii) to use its reasonable efforts, consistent
with the terms and provisions of the Declaration of Trust, to cause PLC Capital
to remain a grantor trust and not to be classified as an association taxable as
a corporation for United States federal income tax purposes.
Section 2.11. Denomination. The Securities shall be issuable in
denominations of $1,000 and integral multiples thereof.
Section 2.12. Currency. Principal and interest on the Securities
shall be payable in Dollars.
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<PAGE>
Section 2.13. Registered Securities; Form. Except as provided in
Section 2.14, the Securities shall be issued as Registered Securities, without
coupons and shall be registered in the name of Wilmington Trust Company, as
Institutional Trustee, and its permitted registered assigns. The Securities
shall be substantially in the form attached as Exhibit A hereto.
Section 2.14. Global Securities Upon Liquidation of Trust.
(a) If, in accordance with the Declaration of Trust, PLC Capital is
to be dissolved and the Securities held by the Institutional Trustee are to be
distributed to the holders of the Trust Securities:
(i) the Securities in certificated form shall be presented to the
Trustee by the Institutional Trustee in exchange for a global Security in an
aggregate principal amount equal to the aggregate principal amount of all
outstanding Securities (a "Global Security") to be registered in the name of the
Depository (as defined in the Declaration of Trust), or its nominee, and
delivered by the Trustee to the Depository for crediting to the accounts of its
participants pursuant to the instructions of the Regular Trustees (as defined in
the Declaration of Trust). The Company upon any such presentation shall execute
a Global Security in such aggregate principal amount and deliver the same to the
Trustee for authentication and delivery in accordance with the Indenture and
this Supplemental Indenture No. 6. Payments on Securities issued as Global
Securities will be made to the Depository; and
(ii) if any Preferred Securities are held in non book-entry
certificated form, the Securities in certificated form may be presented to the
Trustee by the Institutional Trustee and any Preferred Security Certificate (as
defined in the Declaration of Trust) which represents Preferred Securities other
than Preferred Securities held by the Clearing Agency (as defined in the
Declaration of Trust) or its nominee ("Non Book-Entry Preferred Securities")
will be deemed to represent beneficial interests in Securities presented to the
Trustee by the Institutional Trustee having an aggregate principal amount equal
to the aggregate liquidation amount of the Non Book-Entry Preferred Securities
until such Preferred Security Certificates are presented to the Registrar for
transfer or reissuance at which time such Preferred Security Certificates will
be canceled and a Security, registered in the name of the holder of the
Preferred Security Certificate or the transferee of the holder of such Preferred
Security Certificate, as the case may be, with an aggregate principal amount
equal to the aggregate liquidation amount of the Preferred Security Certificate
canceled, will be executed by the Company and delivered to the Trustee for
authentication and delivery in accordance with the Indenture and this
Supplemental Indenture No. 6. On
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<PAGE>
issue of such Securities, Securities with an equivalent aggregate principal
amount that were presented by the Institutional Trustee to the Trustee will be
deemed to have been canceled.
(b) Unless and until it is exchanged for the Securities in
registered form, a Global Security may be transferred, in whole but not in part,
only to another nominee of the Depository, or to a successor Depository selected
or approved by the Company or to a nominee of such successor Depository.
(c) If at any time the Depository notifies the Company that it is
unwilling or unable to continue as Depository or if at any time the Depository
for such series shall no longer be registered or in good standing under the
Securities Exchange Act of 1934, as amended, or other applicable statute or
regulation, and a successor Depository for such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such condition, as the case may be, the Company will execute, and, subject to
Article III of the Indenture, the Trustee, upon written notice from the Company,
will authenticate and deliver the Securities in definitive registered form
without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Security in exchange for such
Global Security. In addition, the Company may at any time determine that the
Securities shall no longer be represented by a Global Security. In such event
the Company will execute, and subject to Section 3.3 of the Indenture, the
Trustee, upon receipt of an Officer's Certificate evidencing such determination
by the Company, will authenticate and deliver the Securities in definitive
registered form without coupons, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global Security
in exchange for such Global Security. Upon the exchange of the Global Security
for such Securities in definitive registered form without coupons, in authorized
denominations, the Global Security shall be canceled by the Trustee. Such
Securities in definitive registered form issued in exchange for the Global
Security shall be registered in such names and in such authorized denominations
as the Depository, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall deliver
such Securities to the Depository for delivery to the Persons in whose names
such Securities are so registered.
Section 2.15. Defeasance and Covenant Defeasance. The provisions of
Sections 4.4 and 4.5 of the Indenture shall apply to the Securities.
Section 2.16. Registrar and Paying Agent. The Trustee shall
initially serve as Registrar and Paying Agent.
11
<PAGE>
Section 2.17. Additional Provisions Regarding Amendments. So long as
the Holder of the Securities is PLC Capital, the terms of the Securities may be
amended by mutual consent of the Company and PLC Capital in the manner they
shall agree; provided, however, that, so long as any of the Preferred Securities
remain outstanding, no such amendment shall be made that adversely affects the
holders of the Preferred Securities, no termination of the Securities shall
occur, and no Event of Default or compliance with any covenant under the
Securities may be waived by PLC Capital, without the prior approval of the
holders of at least 66-2/3% in liquidation preference of all Preferred
Securities then outstanding, in writing or at a duly constituted meeting of such
holders.
Section 2.18. Additional Provisions Regarding Assignment. The
Company shall have the right at all times to assign any of its rights or
obligations under the Securities to a direct or indirect wholly-owned subsidiary
of the Company; provided, however, that, in the event of any such assignment,
the Company shall remain jointly and severally liable for all such obligations.
So long as PLC Capital is the Holder of the Securities, PLC Capital may not
assign any of its rights under the Securities, other than in connection with a
merger or consolidation or sale of assets or exchange permitted under the terms
of the Preferred Securities. Subject to the foregoing, the Securities shall be
binding upon and inure to the benefit of the Company and PLC Capital and their
respective permitted successors and assigns. Any assignment by the Company or
PLC Capital in contravention of such provisions will be null and void.
Section 2.19. Miscellaneous Expenses.
(a) In connection with the offering, sale and issuance of the
Securities to the Institutional Trustee and in connection with the sale of the
Trust Securities by PLC Capital, the Company, in its capacity as borrower with
respect to the Securities, shall pay (i) all costs and expenses relating to the
offering, sale and issuance of the Trust Securities and the Securities,
including commissions to the underwriters payable pursuant to the Purchase
Agreement and compensation of the Trustee under the Indenture, (ii) all costs
and expenses of PLC Capital (including, but not limited to, costs and expenses
relating to the organization of PLC Capital, the offering sale and issuance of
the Trust Securities (including commissions to the underwriters in connection
therewith), the fees and expenses of the Institutional Trustee and the Delaware
Trustee, the costs and expenses relating to the operation of PLC Capital,
including, without limitation, costs and expenses of accountants, attorneys,
statistical or bookkeeping services, expenses for printing and engraving and
computing or accounting equipment, paying agent(s), registrar(s), transfer
agent(s), duplicating,
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travel and telephone and other telecommunications expenses and costs and
expenses incurred in connection with the acquisition, financing, and disposition
of PLC Capital's assets), and (iii) the enforcement by the Institutional Trustee
(as defined in the Declaration of Trust) of the rights of the holders of the
Preferred Securities. The Company fully and unconditionally guarantees the
payment of such expenses.
(b) If at any time PLC Capital shall be required to pay any taxes,
duties, assessments or governmental charges of whatever nature (other than
withholding taxes) imposed by the United States, or any other domestic taxing
authority, then, in any such case, the Company agrees to pay, as additional
interest ("Additional Interest") such additional amounts as shall be required so
that the net amounts received and retained by PLC Capital with respect to the
Securities after paying any such taxes, duties, assessments or other
governmental charges, as well as all liabilities, costs and expenses of PLC
Capital with respect to any such items, will be not less than the amounts PLC
Capital would have received had no such taxes, duties, assessments or other
governmental charges been imposed and no such liabilities, costs and expenses
with respect thereto been incurred.
ARTICLE 3
Miscellaneous Provisions
Section 3.1. The Indenture, as supplemented and amended by this
Supplemental Indenture No. 6, is in all respects hereby adopted, ratified and
confirmed.
Section 3.2. This Supplemental Indenture No. 6 may be executed in
any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
SECTION 3.3. THIS SUPPLEMENTAL INDENTURE NO. 6 AND EACH SECURITY
SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK
AND SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture No. 6 to be duly executed, as of the day and year first written above.
PROTECTIVE LIFE CORPORATION
By:
----------------------------
Name:
Title:
By:
----------------------------
Name:
Title:
[Seal]
Attest:
-----------------------
Name:
Title:
AMSOUTH BANK, Trustee
By:
----------------------------
Name:
Title:
[Seal]
Attest:
-----------------------
Name:
Title:
14
<PAGE>
Exhibit A
FORM OF FACE OF SERIES _ SUBORDINATED DEBENTURE
THIS SERIES _ SUBORDINATED DEBENTURE IS REGISTERED IN THE NAME OF
WILMINGTON TRUST COMPANY, AS INSTITUTIONAL TRUSTEE, AND MAY NOT BE
TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF OTHER THAN AS PERMITTED IN THE
SUPPLEMENTAL INDENTURE NO. 6 DATED AS OF__________, 199_, A COPY OF WHICH
IS ON FILE WITH THE SECRETARY OF THE COMPANY.
ARTICLE VIII
FORM OF DEBENTURE
[IF THE DEBENTURE IS TO BE A GLOBAL SECURITY INSERT This
Subordinated Debenture is Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depository or a
nominee of the Depository. This Subordinated Debenture is exchangeable for
Subordinated Debentures registered in the name of a person other than the
Depository or its nominee only in the limited circumstances described in the
Indenture, and no transfer of this Subordinated Debenture (other than a transfer
of this Subordinated Debenture as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository) may be registered except in limited circumstances.
Unless this Subordinated Debenture is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the issuer or its agent for registration of transfer, exchange or
payment, and any Subordinated Debenture issued is registered in the name of Cede
& Co. or such other name as requested by an authorized representative of the
Depository Trust Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.]
<PAGE>
PROTECTIVE LIFE CORPORATION
___% Subordinated Debentures
Due__________, 20__, Series__
No. 1 $__________
PROTECTIVE LIFE CORPORATION, a corporation duly organized and
existing under the laws of the State of Delaware (herein called the "Company",
which term includes any successor corporation under the Indenture (as defined on
the reverse hereof)), for value received, hereby promises to pay to
______________________, the principal sum of $_________ on__________, 20__ (such
date, and any other such other date to which the stated maturity of this
Subordinated Debenture may be shortened or extended, as described below, is
hereinafter referred to as the "Stated Maturity") and to pay interest thereon
from. Interest shall be payable on this Subordinated Debenture, in arrears, on
March 31, June 30, September 30 and December 31 of each year (each an "Interest
Payment Date") commencing __________, 199_, at the rate of ___% per annum, until
the principal hereof is paid or made available for payment; provided that any
such installment of interest, which is overdue shall bear interest at the rate
of ___% per annum (to the extent that the payment of such interest shall be
legally enforceable) from the dates such amounts are due until they are paid or
made available for payment, and such interest shall be payable on demand;
provided further that, notwithstanding anything contained in the Indenture and
Supplemental Indenture No. 6 (as defined on the reverse hereof) to the contrary,
the Company shall have the right at any time, and from time to time, during the
term of this Subordinated Debenture to defer payments of interest by extending
the interest payment period to the next Interest Payment Date by one or more
quarterly periods not exceeding 20 consecutive quarters (each such period, an
"Extension Period"), but no such Extension Period may extend beyond __________,
20__, or such other date to which the Stated Maturity may have been shortened or
extended as described below. At the end of any such Extension Period, the
Company shall pay all interest then accrued and unpaid (including any Additional
Interest, as hereinafter defined) together with interest thereon compounded
quarterly at the rate specified for this Subordinated Debenture to the extent
permitted by applicable law; provided, that during any such Extension Period,
(a) the Company shall not declare or pay dividends on, make any distribution
with respect to, or redeem, purchase, acquire or make a liquidation payment with
respect to any of its capital stock (other than (i) purchases or acquisitions of
shares of the Company's common stock in connection with
2
<PAGE>
the satisfaction by the Company of its obligations under any employee benefit
plans or the satisfaction by the Company of its obligation pursuant to any
contract or security requiring it to purchase shares of its common stock, (ii)
as a result of a reclassification of the Company's capital stock or the exchange
or conversion of one class or series of the Company's capital stock for another
class or series of its capital stock, (iii) the purchase of fractional interests
in shares of the Company's capital stock pursuant to an acquisition or the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged, and (iv) redemptions or purchases pursuant to the
Company's Rights Agreement, dated August 7, 1995, between the Company and
AmSouth Bank of Alabama as Rights Agent), (b) the Company shall not make any
payment of principal, premium, if any, or interest on or repay, repurchase or
redeem any debt securities issued by the Company that rank pari passu with or
junior to the Securities (as defined in Supplemental Indenture No. 6) and (c)
the Company shall not make any guarantee payments with respect to the foregoing
(other than pursuant to the Preferred Securities Guarantee, dated as of
__________, 199_ of the Company (the "Guarantee") with respect to the ___% Trust
Originated Preferred Securities (the "Preferred Securities") issued by PLC
Capital Trust IV ("PLC Capital"), the Common Securities Guarantee, dated as of
__________, 199_ of the Company (the "Common Guarantee," and together with the
Guarantee, the "Guarantees") with respect to the ___% Trust Originated Common
Securities (the "Common Securities," and together with the Preferred Securities,
the "Trust Securities") issued by PLC Capital, the Preferred Securities
Guarantee Agreement, dated as of ___, 199_, of the Company, with respect to the
_% Trust Originated Preferred Securities of PLC Capital Trust III and the Common
Securities Guarantee Agreement, dated as of ____, 199_, of the Company, with
respect to the _% Trust Originated Common Securities of PLC Capital Trust III
(together the "PLC III _% TOPrS Guarantees"), the Preferred Securities Guarantee
Agreement, dated as of ___, 199_, of the Company, with respect to the _% Trust
Originated Preferred Securities of PLC Capital Trust II and the Common
Securities Guarantee Agreement, dated as of ____, 199_, of the Company, with
respect to the _% Trust Originated Common Securities of PLC Capital Trust II
(together the "PLC II _% TOPrS Guarantees"), the Preferred Securities Guarantee
Agreement, dated April 29, 1997, of the Company, with respect to the 8 1/4%
Trust Originated Preferred Securities of PLC Capital Trust I, the Common
Securities Guarantee Agreement, dated as of April 29, 1997, of the Company with
respect to the 8 1/4% Trust Originated Common Securities of PLC Capital Trust I
(together the "8 1/4% TOPrS Guarantees") and the Guarantee Agreement, dated as
of June 9, 1994 of the Company (the "Series A Guarantee") with respect to the 9%
Cumulative Monthly Income Preferred Securities, Series A of PLC Capital L.L.C.).
Prior to the termination of any such Extension Period, the Company may further
defer payments of interest by extending the interest payment period; provided,
however, that, such Extension Period,
3
<PAGE>
including all such previous and further extensions, may not exceed 20
consecutive quarters or beyond the Stated Maturity. Upon the termination of any
Extension Period and the payment of all amounts then due, the Company may
commence a new Extension Period, subject to the terms set forth below. No
interest shall be due and payable during any Extension Period, except at the end
thereof, but the Company may prepay at any time all or any portion of the
interest accrued during any Extension Period. If the Institutional Trustee (as
defined in the Amended and Restated Declaration of Trust of PLC Capital (the
"Declaration of Trust") shall be the sole holder of the Securities, the Company
shall give the Regular Trustees (as defined in the Declaration of Trust) and the
Institutional Trustee (as defined in the Declaration of Trust), notice of its
selection of such Extension Period one Business Day prior to the earlier of (i)
the date distributions on the Preferred Securities are payable or (ii) the date
the Regular Trustees are required to give notice of the record date or the date
such distribution is payable to the New York Stock Exchange (or other applicable
self-regulatory organization) or to holders of the Preferred Securities, but in
any event at least one Business Day before such record date. If the
Institutional Trustee shall not be the sole holder of the Securities, the
Company shall give the holders of the Securities notice of its selection of such
Extension Period at least 10 Business Days prior to the earlier of (i) the
Interest Payment Date or (ii) the date upon which the Company is required to
give notice of the record or payment date of such interest payment to the New
York Stock Exchange (or other applicable self-regulatory organization) or to
holders of the Securities. The quarter in which any notice is given in
accordance with the foregoing provisions shall be counted as one of the 20
quarters permitted in the maximum Extension Period permitted hereunder.
The Company shall have the right to (i) shorten the Stated Maturity
of the principal of this Subordinated Debenture at any time to any date not
earlier than __________, 20__, and (ii) extend the stated maturity of the
principal of this Subordinated Debenture at any time at its election for one or
more periods, but in no event to a date later than __________, 20__; provided
that, if the Company elects to exercise its right to extend the Stated Maturity
of the principal of this Subordinated Debenture pursuant to clause (ii), above,
at the time such election is made and at the time of extension (A) the Company
is not in bankruptcy, otherwise insolvent or in liquidation, (B) the Company is
not in default in the payment of any interest or principal on the Securities,
(C) in the case of the Securities held by PLC Capital, PLC Capital is not in
arrears on payments of Distributions (as defined in the Amended and Restated
Declaration of Trust of PLC Capital) on the ___% Trust Originated Preferred
Securities of PLC Capital and no deferred Distributions are accumulated and (D)
the Securities are rated not less than BBB- by Standard & Poor's Ratings
Services or Baa3 by Moody's Investors Service, Inc. or the equivalent by any
other nationally
4
<PAGE>
recognized statistical rating organization; provided, further, that the
Company may at any time irrevocably waive its right to extend the Stated
Maturity date. In the event the Company elects to shorten or extend the
Stated Maturity the Securities or to irrevocably waive its right to extend
the Stated Maturity of the Securities, it shall give notice to the Trustee,
and the Trustee shall give notice of such shortening or extension or waiver
to the Holder hereof, no less than 30 and no more than 90 days prior to the
effectiveness thereof.
The amount of interest payable on any Interest Payment Date shall be
computed on the basis of twelve 30-day months and a 360-day year and, for any
period that is shorter than a full 90-day quarter, will be calculated on the
basis of the actual number of days elapsed in such period. In the event that any
date on which interest is payable on this Security is not a Business Day, then
payment of the interest payable on such date will be made on the next succeeding
day which is a Business Day (and without any interest or other payment in
respect of any such delay), except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date. The interest so payable on any Interest Payment Date which is
punctually paid or duly provided for on any Interest Payment Date will, as
provided in the Indenture referred to on the reverse hereof, be paid to the
Person in whose name this Subordinated Debenture is registered at the close of
business on the Regular Record Date for such Interest Payment Date, which shall
be the Business Day next preceding such Interest Payment Date. Any such interest
not so punctually paid or duly provided for will forthwith cease to be payable
to the Person in whose name this Security is registered on the relevant Regular
Record Date, and such defaulted interest shall instead be payable to the person
in whose name this Subordinated Debenture is registered on the special record
date for such defaulted interest or other specified date determined in
accordance with the Indenture and the Supplemental Indenture No. 6 referred to
on the reverse hereof.
Payment of the principal of and any such interest on this
Subordinated Debenture will be made at the Corporate Trust Office of the
Trustee, in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts, provided,
however, that at the option of the Company payment of interest may be paid (i)
by check mailed to the address of the person entitled thereto as such address
shall appear in the Register of Holders of the Subordinated Debentures or (ii)
by wire transfer to an account maintained by the Person entitled thereto as
specified in the Register of Holders of the Securities.
Reference is hereby made to the further provisions of this
Subordinated Debenture set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
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<PAGE>
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Subordinated Debenture shall not be entitled to any benefit under the Indenture
and Supplemental Indenture No. 6 referred to on the reverse hereof or be valid
or obligatory for any purpose.
6
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated:
PROTECTIVE LIFE CORPORATION
By
--------------------------------
By
--------------------------------
[CORPORATE SEAL]
This is one of the Securities of the series described in the
within-mentioned Indenture.
AMSOUTH BANK, as Trustee
By
--------------------------------
Authorized Signatory
7
<PAGE>
[FORM OF REVERSE OF SERIES _ SUBORDINATED DEBENTURE]
This Subordinated Debenture is one of a duly authorized issue of
securities of the Company (herein called the "Securities"), issued and to be
issued in one or more series under a Subordinated Indenture, dated as of June 1,
1994 (herein, together with all indentures supplemental thereto, including
Supplemental Indenture No. 1, dated as of June 9, 1994, Supplemental Indenture
No. 2, dated August 1, 1994, Supplemental Indenture No. 3, dated April 29, 1997,
Supplemental Indenture No. 4, dated __________, 199_, Supplemental Indenture No.
5, dated __________, 199_ and Supplemental Indenture No. 6, dated __________,
199_ called the "Indenture"), from the Company to AmSouth Bank (as successor by
merger to AmSouth Bank of Alabama, successor by conversion of charter to AmSouth
Bank N.A.) (herein called the "Trustee", which term includes any successor
trustee under the Indenture), to which Indenture reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee, the holders of Senior Indebtedness and
the Holders of the Securities and of the terms upon which the Securities are,
and are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof, limited in aggregate principal amount to
$__________ and is issued pursuant to Supplemental Indenture No. 6, dated as of
__________, 199_ from the Company to the Trustee, relating to the Securities of
this series (herein called "Supplemental Indenture No. 6").
The indebtedness evidenced by this Security is to the extent
provided in the Indenture, subordinate and junior in right of payment to all
Senior Indebtedness, and this Security is issued subject to the provisions of
the Indenture with respect thereto. Each holder of this Security, by accepting
the same, (a) agrees to and shall be bound by such provisions, (b) authorizes
and directs the Trustee on his behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination so provided and (c)
appoints the Trustee his attorney-in-fact for any and all such purposes. Each
Holder hereof, by his acceptance hereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and in the Indenture
by each holder of Senior Indebtedness, whether now outstanding or hereafter
incurred, and waives reliance by each such holder upon said provisions.
The Securities of this series are subject to redemption at any time
in whole or from time to time in part, on or after __________, 20__, but prior
to their stated maturity (or such other date to which the stated maturity of
this Subordinated Debenture may be shortened or extended, as described on the
face of this Subordinated Debenture), or, in whole at any time or in part from
time to time if a Tax Event shall
8
<PAGE>
have occurred, upon not less than 30 nor more than 60 days notice, at a
redemption price equal to 100% of the principal amount to be redeemed plus any
accrued and unpaid interest, including Additional Interest, if any, to the
redemption date within 90 days following the occurrence of such Tax Event;
provided, however, that if at the time there is available to the Company or PLC
Capital the opportunity to eliminate, within such 90 day period, the Tax Event
by taking some ministerial action, such as filing a form or making an election
or pursuing some other similar reasonable measure that has no adverse effect on
PLC Capital, the Company or the holders of the Trust Securities, the Company or
PLC Capital will pursue such measure in lieu of redemption.
In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
If an Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture.
The Indenture contains provisions for defeasance at any time of the
indebtedness of this Security or of certain restrictive covenants and Events of
Default with respect to this Security, in each case upon compliance by the
Company with certain conditions set forth therein, which provisions apply to
this Security.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of at least a majority in aggregate principal amount of
the Securities at the time out standing of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of the Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture or to Supplemental Indenture
No. 6 and no provision of this Security or of the Indenture or of Supplemental
Indenture No.
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6 shall alter or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of, and interest on, this Security at the
times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations as
therein set forth, the transfer of this Security is registrable in the Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and interest on this
Security are payable, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company, the Trustee and the Registrar
duly executed by the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Securities of this series and of like tenor, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the person in whose name this Security is registered as the owner
hereof for all purposes, whether or not the Security be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Company and the Holder of this Security agree (i) that for
United States federal, state and local tax purposes it is intended that this
Security constitute indebtedness and (ii) to file all United States federal,
state and local tax returns and reports on such basis (unless the Company or
such Holder, as the case may be, shall have received an opinion of independent
nationally recognized tax counsel to the effect that as a result of a change in
law after the date of the issuance of this Security the Company or such Holder,
as the case may be, is prohibited from filing on such basis).
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All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
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EXHIBIT 4(v)
================================================================================
PREFERRED SECURITIES GUARANTEE AGREEMENT
PLC CAPITAL TRUST II
Dated as of _________, 199_
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I.
DEFINITIONS AND INTERPRETATION
SECTION 1.1. Definitions and Interpretation...........................2
ARTICLE II.
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application.........................5
SECTION 2.2. Lists of Holders of Securities...........................5
SECTION 2.3. Reports by the Preferred Guarantee Trustee...............6
SECTION 2.4. Periodic Reports to Preferred Guarantee Trustee..........6
SECTION 2.5. Evidence of Compliance with Conditions Precedent.........6
SECTION 2.6. Events of Default; Waiver................................6
SECTION 2.7. Event of Default; Notice.................................6
SECTION 2.8. Conflicting Interests....................................7
ARTICLE III.
POWERS, DUTIES AND RIGHTS OF
PREFERRED GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Preferred Guarantee Trustee.....7
SECTION 3.2. Certain Rights of Preferred Guarantee Trustee............9
SECTION 3.3. Not Responsible for Recitals or Issuance of Guarantee...11
ARTICLE IV.
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1. Preferred Guarantee Trustee; Eligibility................11
SECTION 4.2. Appointment, Removal and Resignation of Preferred
Guarantee Trustees...................................12
ARTICLE V.
GUARANTEE
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Page
----
SECTION 5.1. Guarantee...............................................13
SECTION 5.2. Waiver of Notice and Demand.............................13
SECTION 5.3. Obligations Not Affected................................13
SECTION 5.4. Rights of Holders.......................................15
SECTION 5.5. Guarantee of Payment....................................15
SECTION 5.6. Subrogation.............................................15
SECTION 5.7. Independent Obligations.................................15
ARTICLE VI.
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1. Limitation of Transactions..............................16
SECTION 6.2. Ranking.................................................16
ARTICLE VII.
TERMINATION
SECTION 7.1. Termination.............................................17
ARTICLE VIII.
INDEMNIFICATION
SECTION 8.1. Exculpation.............................................17
SECTION 8.2. Indemnification.........................................18
ARTICLE IX.
MISCELLANEOUS
SECTION 9.1. Successors and Assigns..................................18
SECTION 9.2. Amendments..............................................18
SECTION 9.3. Notices.................................................19
SECTION 9.4. Benefit.................................................19
SECTION 9.5. Governing Law...........................................19
ii
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PREFERRED SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Preferred Securities Guarantee"),
dated as of ______________, 199_, is executed and delivered by Protective Life
Corporation, a Delaware corporation (the "Guarantor"), and Wilmington Trust
Company, as trustee (the "Preferred Guarantee Trustee"), for the benefit of the
Holders (as defined herein) from time to time of the Preferred Securities (as
defined herein) of PLC Capital Trust II, a Delaware statutory business trust
(the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust
(the "Declaration"), dated as of _____________, 199_, among the trustees of the
Issuer named therein, the Guarantor, as sponsor, and the holders from time to
time of undivided beneficial interests in the assets of the Issuer, the Issuer
is issuing on the date hereof _________ preferred securities, having an
aggregate liquidation amount of $__________, designated the ___% Trust
Originated Preferred Securities (the "Preferred Securities");
WHEREAS, as incentive for the Holders to purchase the Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Preferred Securities Guarantee, to pay to the
Holders of the Preferred Securities the Guarantee Payments (as defined herein)
and to make certain other payments on the terms and conditions set forth herein;
and
WHEREAS, the Guarantor is also executing and delivering a guarantee
agreement (the "Common Securities Guarantee") in substantially identical terms
to this Preferred Securities Guarantee for the benefit of the holders of the
Common Securities (as defined herein), except that if an Event of Default (as
defined in the Indenture), has occurred and is continuing, the rights of holders
of the Common Securities to receive Guarantee Payments under the Common
Securities Guarantee are subordinated to the rights of Holders of Preferred
Securities to receive Guarantee Payments under this Preferred Securities
Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Preferred Securities
Guarantee for the benefit of the Holders.
<PAGE>
ARTICLE I.
DEFINITIONS AND INTERPRETATION
SECTION 1.1. Definitions and Interpretation. In this Preferred
Securities Guarantee, unless the context otherwise requires:
(a) Capitalized terms used in this Preferred Securities Guarantee
but not defined in the preamble above have the respective meanings
assigned to them in this Section 1.1;
(b) a term defined anywhere in this Preferred Securities Guarantee
has the same meaning throughout;
(c) all references to "the Preferred Securities Guarantee" or "this
Preferred Securities Guarantee" are to this Preferred Securities Guarantee
as modified, supplemented or amended from time to time;
(d) all references in this Preferred Securities Guarantee to
Articles and Sections are to Articles and Sections of this Preferred
Securities Guarantee, unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Preferred Securities Guarantee, unless otherwise defined
in this Preferred Securities Guarantee or unless the context otherwise
requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405
of the Securities Act of 1933, as amended, or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is authorized
to bind such Person.
"Business Day" means any day other than a day on which banking
institutions in the City of New York, New York are authorized or required by any
applicable law to close.
"Common Securities" means the securities representing common
undivided beneficial interests in the assets of the Issuer.
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"Corporate Trust Office" means the office of the Preferred Guarantee
Trustee at which the corporate trust business of the Preferred Guarantee Trustee
shall, at any particular time, be principally administered, which office at the
date of execution of this Agreement is located at Wilmington Trust Company,
Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890,
Attention: Corporate Trust Administration.
"Covered Person" means any Holder or beneficial owner of Preferred
Securities.
"Debentures" means the series of junior subordinated debt securities
of the Guarantor designated the ___% Subordinated Debentures due 20__, Series __
held by the Institutional Trustee (as defined in the Declaration) of the Issuer.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Preferred Securities Guarantee.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Preferred Securities, to the extent not
paid or made by the Issuer: (i) any accrued and unpaid Distributions (as defined
in the Declaration) that are required to be paid on such Preferred Securities to
the extent the Issuer shall have funds available therefor, (ii) the redemption
price, including all accrued and unpaid Distributions to the date of redemption
(the "Redemption Price") to the extent the Issuer has funds available therefor,
with respect to any Preferred Securities called for redemption by the Issuer,
and (iii) upon a voluntary or involuntary dissolution, winding-up or termination
of the Issuer (other than in connection with the distribution of Debentures to
the Holders in exchange for Preferred Securities as provided in the
Declaration), the lesser of (a) the aggregate of the liquidation amount and all
accrued and unpaid Distributions on the Preferred Securities to the date of
payment, to the extent the Issuer shall have funds available therefor, and (b)
the amount of assets of the Issuer remaining available for distribution to
Holders in liquidation of the Issuer (in either case, the "Liquidation
Distribution"). If an event of default under the Indenture has occurred and is
continuing, the rights of holders of the Common Securities to receive payments
under the Common Securities Guarantee Agreement are subordinated to the rights
of Holders of Preferred Securities to receive Guarantee Payments.
"Holder" shall mean any holder, as registered on the books and
records of the Issuer of any Preferred Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the Guarantor.
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"Indemnified Person" means the Preferred Guarantee Trustee, any
Affiliate of the Preferred Guarantee Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives, nominees,
custodians or agents of the Preferred Guarantee Trustee.
"Indenture" means the Indenture dated as of June 1, 1994, among the
Guarantor (the "Debenture Issuer") and AmSouth Bank (as successor by merger to
AmSouth Bank of Alabama, successor by conversion of charter to AmSouth Bank
N.A.), as trustee, and any indenture supplemental thereto pursuant to which
certain subordinated debt securities of the Debenture Issuer are to be issued to
the Institutional Trustee of the Issuer.
"Majority in liquidation amount of the Securities" means, except as
provided by the Trust Indenture Act, a vote by Holder(s) of Preferred
Securities, voting separately as a class, of more than 50% of the liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined) of all Preferred Securities.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Preferred Securities Guarantee shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definition relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
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"Preferred Guarantee Trustee" means Wilmington Trust Company until a
Successor Preferred Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Preferred Securities Guarantee and
thereafter means each such Successor Preferred Guarantee Trustee.
"Responsible Officer" means, with respect to the Preferred Guarantee
Trustee, any officer within the Corporate Trust Office of the Preferred
Guarantee Trustee, including any vice-president, any assistant vice-president,
any assistant secretary, the treasurer, any assistant treasurer or other officer
of the Corporate Trust Office of the Preferred Guarantee Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of that officer's
knowledge of and familiarity with the particular subject.
"Successor Preferred Guarantee Trustee" means a successor Preferred
Guarantee Trustee possessing the qualifications to act as Preferred Guarantee
Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
ARTICLE II.
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application. (a) This Preferred
Securities Guarantee is subject to the provisions of the Trust Indenture Act
that are required to be part of this Preferred Securities Guarantee and shall,
to the extent applicable, be governed by such provisions; and
(b) if and to the extent that any provision of this Preferred
Securities Guarantee limits, qualifies or conflicts with the duties imposed by
Section 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
SECTION 2.2. Lists of Holders of Securities. (a) The Guarantor shall
provide the Preferred Guarantee Trustee with a list, in such form as the
Preferred Guarantee Trustee may reasonably require, of the names and addresses
of the Holders of the Preferred Securities ("List of Holders") as of such date,
(i) concurrently with the provision of such a list to the Institutional Trustee
pursuant to the Declaration, and (ii) at any time within 30 days of receipt by
the Guarantor of a written request for a List of Holders as of a date no more
than 14 days
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before such List of Holders is given to the Preferred Guarantee Trustee
provided, that the Guarantor shall not be obligated to provide such List of
Holders at any time the List of Holders does not differ from the most recent
List of Holders given to the Preferred Guarantee Trustee by the Guarantor. The
Preferred Guarantee Trustee may destroy any List of Holders previously given to
it on receipt of a new List of Holders.
(b) The Preferred Guarantee Trustee shall comply with its
obligations under Section 311(a), 311(b) and Section 312(b) of the Trust
Indenture Act.
SECTION 2.3. Reports by the Preferred Guarantee Trustee. Within 60
days after May 15 of each year, the Preferred Guarantee Trustee shall provide to
the Holders of the Preferred Securities such reports as are required by Section
313 of the Trust Indenture Act, if any, in the form and in the manner provided
by Section 313 of the Trust Indenture Act. The Preferred Guarantee Trustee shall
also comply with the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4. Periodic Reports to Preferred Guarantee Trustee. The
Guarantor shall provide to the Preferred Guarantee Trustee such documents,
reports and information as required by Section 314 (if any) and the compliance
certificate required by Section 314 of the Trust Indenture Act in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
SECTION 2.5. Evidence of Compliance with Conditions Precedent. The
Guarantor shall provide to the Preferred Guarantee Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this Preferred
Securities Guarantee that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) may be given in the form of an
Officers' Certificate.
SECTION 2.6. Events of Default; Waiver. The Holders of a Majority in
liquidation amount of Preferred Securities may, by vote, on behalf of the
Holders of all of the Preferred Securities, waive any past Event of Default and
its consequences. Upon such waiver, any such Event of Default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Preferred Securities Guarantee, but no such
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent thereon.
SECTION 2.7. Event of Default; Notice. (a) The Preferred Guarantee
Trustee shall, within 90 days after the occurrence of an Event of Default,
transmit by mail, first class postage prepaid, to the Holders of the Preferred
Securities, notices of all Events of
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Default actually known to a Responsible Officer of the Preferred Guarantee
Trustee, unless such defaults have been cured before the giving of such notice,
provided, that, the Preferred Guarantee Trustee shall be protected in
withholding such notice if and so long as a Responsible Officer of the Preferred
Guarantee Trustee in good faith determines that the withholding of such notice
is in the interests of the Holders of the Preferred Securities.
(b) The Preferred Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Preferred Guarantee Trustee shall
have received written notice, or unless a Responsible Officer of the Preferred
Guarantee Trustee charged with the administration of the Declaration shall have
obtained actual knowledge thereof.
SECTION 2.8. Conflicting Interests. The Declaration shall be deemed
to be specifically described in this Preferred Securities Guarantee for the
purposes of clause (i) of the first proviso contained in Section 310(b) of the
Trust Indenture Act.
ARTICLE III.
POWERS, DUTIES AND RIGHTS OF
PREFERRED GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Preferred Guarantee Trustee.
(a) This Preferred Securities Guarantee shall be held by the Preferred Guarantee
Trustee for the benefit of the Holders of the Preferred Securities, and the
Preferred Guarantee Trustee shall not transfer this Preferred Securities
Guarantee to any Person except a Holder of Preferred Securities exercising his
or her rights pursuant to Section 5.4(b) or to a Successor Preferred Guarantee
Trustee on acceptance by such Successor Preferred Guarantee Trustee of its
appointment to act as Successor Preferred Guarantee Trustee. The right, title
and interest of the Preferred Guarantee Trustee shall automatically vest in any
Successor Preferred Guarantee Trustee, and such vesting and cessation of title
shall be effective whether or not conveyancing documents have been executed and
delivered pursuant to the appointment of such Successor Preferred Guarantee
Trustee.
(b) If an Event of Default actually known to a Responsible Officer
of the Preferred Guarantee Trustee has occurred and is continuing, the Preferred
Guarantee Trustee shall enforce this Preferred Securities Guarantee for the
benefit of the Holders of the Preferred Securities.
(c) The Preferred Guarantee Trustee, before the occurrence of any
Event of Default and after the curing of all Events of Default that may have
occurred, shall undertake to
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perform only such duties as are specifically set forth in this Preferred
Securities Guarantee, and no implied covenants shall be read into this Preferred
Securities Guarantee against the Preferred Guarantee Trustee. In case an Event
of Default has occurred (that has not been cured or waived pursuant to Section
2.6) and is actually known to a Responsible Officer of the Preferred Guarantee
Trustee, the Preferred Guarantee Trustee shall exercise such of the rights and
powers vested in it by this Preferred Securities Guarantee, and use the same
degree of care and skill in its exercise thereof, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(d) No provision of this Preferred Securities Guarantee shall be
construed to relieve the Preferred Guarantee Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Preferred Guarantee
Trustee shall be determined solely by the express provisions of this
Preferred Securities Guarantee, and the Preferred Guarantee Trustee
shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Preferred
Securities Guarantee, and no implied covenants or obligations shall
be read into this Preferred Securities Guarantee against the
Preferred Guarantee Trustee; and
(B) in the absence of bad faith on the part of the Preferred
Guarantee Trustee, the Preferred Guarantee Trustee may conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Preferred Guarantee Trustee and conforming to the
requirements of this Preferred Securities Guarantee; but in the case
of any such certificates or opinions that by any provision hereof
are specifically required to be furnished to the Preferred Guarantee
Trustee, the Preferred Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Preferred Securities Guarantee;
(ii) the Preferred Guarantee Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of the
Preferred Guarantee Trustee, unless it shall be proved that the Preferred
Guarantee Trustee was negligent in ascertaining the pertinent facts upon
which such judgment was made;
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(iii) the Preferred Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a Majority
in liquidation amount of the Preferred Securities relating to the time,
method and place of conducting any proceeding for any remedy available to
the Preferred Guarantee Trustee, or exercising any trust or power
conferred upon the Preferred Guarantee Trustee under this Preferred
Securities Guarantee; and
(iv) no provision of this Preferred Securities Guarantee shall
require the Preferred Guarantee Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers, if the
Preferred Guarantee Trustee shall have reasonable grounds for believing
that the repayment of such funds or liability is not reasonably assured to
it under the terms of this Preferred Securities Guarantee or indemnity,
reasonably satisfactory to the Preferred Guarantee Trustee, against such
risk or liability is not reasonably assured to it.
SECTION 3.2. Certain Rights of Preferred Guarantee Trustee. (a)
Subject to the provisions of Section 3.1:
(i) The Preferred Guarantee Trustee may conclusively rely, and shall
be fully protected in acting or refraining from acting upon, any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document believed by it to be genuine
and to have been signed, sent or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Preferred Securities Guarantee shall be sufficiently evidenced by a
Direction (as defined in the Declaration) or an Officers' Certificate.
(iii) Whenever, in the administration of this Preferred Securities
Guarantee, the Preferred Guarantee Trustee shall deem it desirable that a
matter be proved or established before taking, suffering or omitting any
action hereunder, the Preferred Guarantee Trustee (unless other evidence
is herein specifically prescribed) may, in the absence of bad faith on its
part, request and conclusively rely upon an Officers' Certificate which,
upon receipt of such request, shall be promptly delivered by the
Guarantor.
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(iv) The Preferred Guarantee Trustee shall have no duty to see to
any recording, filing or registration of any instrument (or any
rerecording, refiling or registration thereof).
(v) The Preferred Guarantee Trustee may consult with counsel, and
the written advice or opinion of such counsel with respect to legal
matters shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted by it hereunder in good faith and
in accordance with such advice or opinion. Such counsel may be counsel to
the Guarantor or any of its Affiliates and may include any of its
employees. The Preferred Guarantee Trustee shall have the right at any
time to seek instructions concerning the administration of this Preferred
Securities Guarantee from any court of competent jurisdiction.
(vi) The Preferred Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Preferred
Securities Guarantee at the request or direction of any Holder, unless
such Holder shall have provided to the Preferred Guarantee Trustee such
security and indemnity, reasonably satisfactory to the Preferred Guarantee
Trustee, against the costs, expenses (including attorneys' fees and
expenses and the expenses of the Preferred Guarantee Trustee's agents,
nominees or custodians) and liabilities that might be incurred by it in
complying with such request or direction, including such reasonable
advances as may be requested by the Preferred Guarantee Trustee; provided
that, nothing contained in this Section 3.2(a)(vi) shall be taken to
relieve the Preferred Guarantee Trustee, upon the occurrence of an Event
of Default, of its obligation to exercise the rights and powers vested in
it by this Preferred Securities Guarantee.
(vii) The Preferred Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Preferred Guarantee
Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit.
(viii) The Preferred Guarantee Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or by
or through agents, nominees, custodians or attorneys, and the Preferred
Guarantee Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
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(ix) Any action taken by the Preferred Guarantee Trustee or its
agents hereunder shall bind the Holders of the Preferred Securities, and
the signature of the Preferred Guarantee Trustee or its agents alone shall
be sufficient and effective to perform any such action. No third party
shall be required to inquire as to the authority of the Preferred
Guarantee Trustee to so act or as to its compliance with any of the terms
and provisions of this Preferred Securities Guarantee, both of which shall
be conclusively evidenced by the Preferred Guarantee Trustee's or its
agent's taking such action.
(x) Whenever in the administration of this Preferred Securities
Guarantee the Preferred Guarantee Trustee shall deem it desirable to
receive instructions with respect to enforcing any remedy or right or
taking any other action hereunder, the Preferred Guarantee Trustee (i) may
request instructions from the Holders of a Majority in liquidation amount
of the Preferred Securities, (ii) may refrain from enforcing such remedy
or right or taking such other action until such instructions are received,
and (iii) shall be protected in conclusively relying on or acting in
accordance with such instructions.
(b) No provision of this Preferred Securities Guarantee shall be
deemed to impose any duty or obligation on the Preferred Guarantee Trustee to
perform any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it in any jurisdiction in which it shall be illegal, or
in which the Preferred Guarantee Trustee shall be unqualified or incompetent in
accordance with applicable law, to perform any such act or acts or to exercise
any such right, power, duty or obligation. No permissive power or authority
available to the Preferred Guarantee Trustee shall be construed to be a duty.
SECTION 3.3. Not Responsible for Recitals or Issuance of Guarantee.
The recitals contained in this Guarantee shall be taken as the statements of the
Guarantor, and the Preferred Guarantee Trustee does not assume any
responsibility for their correctness. The Preferred Guarantee Trustee makes no
representation as to the validity or sufficiency of this Preferred Securities
Guarantee.
ARTICLE IV.
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1. Preferred Guarantee Trustee; Eligibility. (a) There
shall at all times be a Preferred Guarantee Trustee which shall:
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(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation or Person permitted by the
Securities and Exchange Commission to act as an institutional trustee
under the Trust Indenture Act, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
50 million U.S. dollars ($50,000,000), and subject to supervision or
examination by Federal, State, Territorial or District of Columbia
authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the supervising or
examining authority referred to above, then, for the purposes of this
Section 4.1(a)(ii), the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published.
(b) If at any time the Preferred Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Preferred Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.2 (c).
(c) If the Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Preferred Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
SECTION 4.2. Appointment, Removal and Resignation of Preferred
Guarantee Trustees. (a) Subject to Section 4.2(b), the Preferred Guarantee
Trustee may be appointed or removed without cause at any time by the Guarantor.
(b) The Preferred Guarantee Trustee shall not be removed in
accordance with Section 4.2(a) until a Successor Preferred Guarantee Trustee has
been appointed and has accepted such appointment by written instrument executed
by such Successor Preferred Guarantee Trustee and delivered to the Guarantor.
(c) The Preferred Guarantee Trustee appointed to office shall hold
office until a Successor Preferred Guarantee Trustee shall have been appointed
or until its removal or resignation. The Preferred Guarantee Trustee may resign
from office (without need for prior or subsequent accounting) by an instrument
in writing executed by the Preferred Guarantee Trustee and delivered to the
Guarantor, which resignation shall not take effect until a Successor Preferred
Guarantee Trustee has been appointed and has accepted such appointment
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by instrument in writing executed by such Successor Preferred Guarantee Trustee
and delivered to the Guarantor and the resigning Preferred Guarantee Trustee.
(d) If no Successor Preferred Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.2 within 60
days after delivery to the Guarantor of an instrument of resignation, the
resigning Preferred Guarantee Trustee may petition any court of competent
jurisdiction for appointment of a Successor Preferred Guarantee Trustee. Such
court may thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Preferred Guarantee Trustee.
(e) No Preferred Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Preferred Guarantee Trustee.
(f) Upon termination of this Preferred Securities Guarantee or
removal or resignation of the Preferred Guarantee Trustee pursuant to this
Section 4.2, the Guarantor shall pay to the Preferred Guarantee Trustee all
amounts accrued to the date of such termination, removal or resignation.
ARTICLE V.
GUARANTEE
SECTION 5.1. Guarantee. The Guarantor irrevocably and
unconditionally agrees to pay in full to the Holders the Guarantee Payments
(without duplication of amounts theretofore paid by the Issuer), as and when
due, regardless of any defense, right of set-off or counterclaim that the Issuer
may have or assert. The Guarantor's obligation to make a Guarantee Payment may
be satisfied by direct payment of the required amounts by the Guarantor to the
Holders or by causing the Issuer to pay such amounts to the Holders.
SECTION 5.2. Waiver of Notice and Demand. The Guarantor hereby
waives notice of acceptance of this Preferred Securities Guarantee and of any
liability to which it applies or may apply, presentment, demand for payment, any
right to require a proceeding first against the Issuer or any other Person
before proceeding against the Guarantor, protest, notice of nonpayment, notice
of dishonor, notice of redemption and all other notices and demands.
SECTION 5.3. Obligations Not Affected. The obligations, covenants,
agreements and duties of the Guarantor under this Preferred Securities Guarantee
shall in no
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way be affected or impaired by reason of the happening from time to time of any
of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Preferred
Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or
any portion of the Distributions, Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Preferred
Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Preferred
Securities (other than an extension of time for payment of Distributions,
Redemption Price, Liquidation Distribution or other sum payable that
results from the extension of any interest payment period on the
Debentures or any extension of the maturity date of the Debentures
permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Holders pursuant to the terms of the Preferred
Securities, or any action on the part of the Issuer granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the
Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it
being the intent of this Section 5.3 that the obligations of the Guarantor
hereunder shall be absolute and unconditional under any and all
circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
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SECTION 5.4. Rights of Holders. (a) The Holders of a Majority in
liquidation amount of the Preferred Securities have the right to direct the
time, method and place of conducting of any proceeding for any remedy available
to the Preferred Guarantee Trustee in respect of this Preferred Securities
Guarantee or exercising any trust or power conferred upon the Preferred
Guarantee Trustee under this Preferred Securities Guarantee.
(b) If the Preferred Guarantee Trustee fails to enforce this
Preferred Securities Guarantee with respect to the right of any Holders to
receive any Guarantee Payment in accordance herewith, such Holder may directly
institute a proceeding against the Guarantor for enforcement of the Preferred
Security Guarantee for such payment. The Guarantor waives any right or remedy to
require that any action be brought first against the Issuer or any other Person
or entity before proceeding directly against the Guarantor.
SECTION 5.5. Guarantee of Payment. This Preferred Securities
Guarantee creates a guarantee of payment and not of collection.
SECTION 5.6. Subrogation. The Guarantor shall be subrogated to all
(if any) rights of the Holders of Preferred Securities against the Issuer in
respect of any amounts paid to such Holders by the Guarantor under this
Preferred Securities Guarantee; provided, however, that the Guarantor shall not
(except to the extent required by mandatory provisions of law) be entitled to
enforce or exercise any right that it may acquire by way of subrogation or any
indemnity, reimbursement or other agreement, in all cases as a result of payment
under this Preferred Securities Guarantee, if, at the time of any such payment,
any amounts are due and unpaid under this Preferred Securities Guarantee. If any
amount shall be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Holders and to pay
over such amount to the Holders.
SECTION 5.7. Independent Obligations. The Guarantor acknowledges
that its obligations hereunder are independent of the obligations of the Issuer
with respect to the Preferred Securities, and that the Guarantor shall be liable
as principal and as debtor hereunder to make Guarantee Payments pursuant to the
terms of this Preferred Securities Guarantee notwithstanding the occurrence of
any event referred to in subsections (a) through (g), inclusive, of Section 5.3
hereof.
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ARTICLE VI.
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1. Limitation of Transactions. So long as any Preferred
Securities remain outstanding, if there shall have occurred and be continuing
an Event of Default or an event of default under the Declaration, then (a)
the Guarantor shall not declare or pay any dividend on, make any
distributions with respect to, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock (other than (i)
purchases or acquisitions of shares of its common stock in connection with
the satisfaction by the Guarantor of its obligations under any employee
benefit plans or the satisfaction by the Guarantor of its obligations
pursuant to any contract or security requiring the Guarantor to purchase
shares of its common stock, (ii) as a result of a reclassification of its
capital stock or the exchange or conversion of one class or series of its
capital stock for another class or series of its capital stock, (iii) the
purchase of fractional interests in shares of its capital stock pursuant to
the conversion or exchange provisions of such capital stock or the security
being converted or exchanged, and (iv) redemptions or purchases pursuant to
the Guarantor's Rights Agreement, dated August 7, 1995, between the Guarantor
and AmSouth Bank of Alabama as Rights Agent), (b) the Guarantor shall not
make any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities (including guarantees) issued by the
Guarantor which rank pari passu with or junior to the Debentures and (c) the
Guarantor shall not make any guarantee payments with respect to the foregoing
(other than pursuant to this Agreement, the Common Securities Guarantee,
dated as of __________, 199_ (the "Common Guarantee") of the Guarantor with
respect to the ___% Trust Originated Common Securities of the Trust, the
Preferred Securities Guarantee Agreement, dated April 29, 1997 of the
Guarantor with respect to the 8 1/4% Trust Originated Preferred Securities of
PLC Capital Trust I, the Common Securities Guarantee Agreement, dated as of
April 29, 1997 of the Guarantor with respect to the 8 1/4% Trust Originated
Common Securities of PLC Capital Trust I and the Guarantee Agreement, dated
as of June 9, 1994 of the Guarantor with respect to the 9% Cumulative Monthly
Income Preferred Securities, Series A of PLC Capital L.L.C.).
SECTION 6.2. Ranking. This Preferred Securities Guarantee will
constitute an unsecured obligation of the Guarantor and will rank (i)
subordinate and junior in right of payment to all present and future Senior
Indebtedness (as such term is defined in the Indenture), (ii) pari passu with
the Common Guarantee, the Debentures, the Guarantor's Guarantee of PLC Capital
L.L.C.'s 9% Cumulative Monthly Income Preferred Securities, Series A, having
an aggregate liquidation amount of $55 million, the Company's 9% Subordinated
Debentures, due 2024, Series A, having an aggregate liquidation amount of
$69.6 million, the Company's Guarantee of PLC Capital Trust I's 8 1/4% Trust
Originated Preferred Securities, having an aggregate liquidation amount of
$75 million, the Company's Guarantee of PLC Capital Trust I's 8 1/4% Trust
Originated Common Securities, having an aggregate liquidation amount of $2.3
million and the Company's 8 1/4% Subordinated Debentures due 2027, Series B,
having an aggregate liquidation amount of $77.3 million, and any other
liabilities or obligations that may be pari passu by their terms and (iii)
senior to the Guarantor's common stock, the most senior preferred or
preference stock now or hereafter issued by the Guarantor
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and with any guarantee now or hereafter entered into by the Guarantor in respect
of any preferred or preference stock of any affiliate of the Guarantor.
ARTICLE VII.
TERMINATION
SECTION 7.1. Termination. This Preferred Securities Guarantee shall
terminate upon (i) full payment of the Redemption Price of all Preferred
Securities, (ii) upon the distribution of the Debentures to the Holders of all
of the Preferred Securities or (iii) upon full payment of the amounts payable in
accordance with the Declaration upon liquidation of the Issuer. Notwithstanding
the foregoing, this Preferred Securities Guarantee will continue to be effective
or will be reinstated, as the case may be, if at any time any Holder of
Preferred Securities must restore payment of any sums paid under the Preferred
Securities or under this Preferred Securities Guarantee.
ARTICLE VIII.
INDEMNIFICATION
SECTION 8.1. Exculpation. (a) No Indemnified Person shall be liable,
responsible or accountable in damages or otherwise to the Guarantor or any
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 in
accordance with this Preferred Securities Guarantee and in a manner that such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Preferred Securities Guarantee or
by law, except that an Indemnified Person shall be liable for any such loss,
damage or claim incurred by reason of such Indemnified Person's negligence or
willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor 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 Guarantor, 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 Holders of Preferred Securities
might properly be paid.
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SECTION 8.2. Indemnification. (a) To the fullest extent permitted by
applicable law, the Guarantor shall indemnify and hold harmless each Indemnified
Person from and against 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 in accordance with this Guarantee Agreement and in a manner
such Indemnified Person reasonably believed to be within the scope of authority
conferred on such Indemnified Person by this Guarantee 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 negligence or
willful misconduct with respect to such acts or omissions.
(b) To the fullest extent permitted by applicable law, reasonable
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 Guarantor prior to the final disposition of such claim, demand,
action, suit or proceeding upon receipt by the Guarantor 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 8.2(a).
(c) The obligation to indemnify as set forth in this Section 8.2
shall survive the termination of the Preferred Securities Guarantee.
ARTICLE IX.
MISCELLANEOUS
SECTION 9.1. Successors and Assigns. All guarantees and agreements
contained in this Preferred Securities Guarantee shall bind the successors,
assigns, receivers, trustees and representatives of the Guarantor and shall
inure to the benefit of the Holders of the Preferred Securities then
outstanding.
SECTION 9.2. Amendments. Except with respect to any changes that do
not adversely affect the rights of Holders (in which case no consent of Holders
will be required), this Preferred Securities Guarantee may only be amended with
the prior approval of the Holders of at least a Majority in liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of all the outstanding Preferred Securities.
The provisions of Section 12.2 of the Declaration with respect to meetings of
Holders of the Securities apply to the giving of such approval.
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SECTION 9.3. Notices. All notices provided for in this Preferred
Securities Guarantee shall be in writing, duly signed by the party giving such
notice, and shall be delivered, telecopied or mailed by registered or certified
mail, as follows:
(a) if given to the Preferred Guarantee Trustee, at the Preferred
Guarantee Trustee's mailing address set forth below (or such other address
as the Preferred Guarantee Trustee may give notice of to the Holders of
the Preferred Securities):
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
(b) If given to the Guarantor, at the Guarantor's mailing address
set forth below (or such other address as the Guarantor may give notice of to
the Holders of the Preferred Securities):
Protective Life Corporation
2801 Highway 280 South
Birmingham, Alabama 35223
Attention: Secretary
(c) If given to any Holder of Preferred Securities, at the address
set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 9.4. Benefit. This Preferred Securities Guarantee is solely
for the benefit of the Holders of the Preferred Securities and, subject to
Section 3.1(a), is not separately transferable from the Preferred Securities.
SECTION 9.5. Governing Law. THIS PREFERRED SECURITIES GUARANTEE
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK.
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THIS PREFERRED SECURITIES GUARANTEE is executed as of the day and
year first above written.
PROTECTIVE LIFE CORPORATION, as Guarantor
By:
--------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY, as Preferred
Guarantee Trustee
By:
--------------------------------------
Name:
Title:
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EXHIBIT 4(w)
Draft--July 2, 1997
================================================================================
PREFERRED SECURITIES GUARANTEE AGREEMENT
PLC CAPITAL TRUST III
Dated as of _________, 199_
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I.
DEFINITIONS AND INTERPRETATION
SECTION 1.1. Definitions and Interpretation...........................2
ARTICLE II.
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application.........................5
SECTION 2.2. Lists of Holders of Securities...........................5
SECTION 2.3. Reports by the Preferred Guarantee Trustee...............6
SECTION 2.4. Periodic Reports to Preferred Guarantee Trustee..........6
SECTION 2.5. Evidence of Compliance with Conditions Precedent.........6
SECTION 2.6. Events of Default; Waiver................................6
SECTION 2.7. Event of Default; Notice.................................6
SECTION 2.8. Conflicting Interests....................................7
ARTICLE III.
POWERS, DUTIES AND RIGHTS OF
PREFERRED GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Preferred Guarantee Trustee.....7
SECTION 3.2. Certain Rights of Preferred Guarantee Trustee............9
SECTION 3.3. Not Responsible for Recitals or Issuance of Guarantee...11
ARTICLE IV.
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1. Preferred Guarantee Trustee; Eligibility................11
SECTION 4.2. Appointment, Removal and Resignation of Preferred
Guarantee Trustees...................................12
ARTICLE V.
GUARANTEE
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Page
----
SECTION 5.1. Guarantee...............................................13
SECTION 5.2. Waiver of Notice and Demand.............................13
SECTION 5.3. Obligations Not Affected................................13
SECTION 5.4. Rights of Holders.......................................15
SECTION 5.5. Guarantee of Payment....................................15
SECTION 5.6. Subrogation.............................................15
SECTION 5.7. Independent Obligations.................................15
ARTICLE VI.
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1. Limitation of Transactions..............................16
SECTION 6.2. Ranking.................................................16
ARTICLE VII.
TERMINATION
SECTION 7.1. Termination.............................................17
ARTICLE VIII.
INDEMNIFICATION
SECTION 8.1. Exculpation.............................................17
SECTION 8.2. Indemnification.........................................18
ARTICLE IX.
MISCELLANEOUS
SECTION 9.1. Successors and Assigns..................................18
SECTION 9.2. Amendments..............................................18
SECTION 9.3. Notices.................................................19
SECTION 9.4. Benefit.................................................19
SECTION 9.5. Governing Law...........................................19
ii
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PREFERRED SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Preferred Securities Guarantee"),
dated as of ______________, 199_, is executed and delivered by Protective Life
Corporation, a Delaware corporation (the "Guarantor"), and Wilmington Trust
Company, as trustee (the "Preferred Guarantee Trustee"), for the benefit of the
Holders (as defined herein) from time to time of the Preferred Securities (as
defined herein) of PLC Capital Trust III, a Delaware statutory business trust
(the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust
(the "Declaration"), dated as of _____________, 199_, among the trustees of the
Issuer named therein, the Guarantor, as sponsor, and the holders from time to
time of undivided beneficial interests in the assets of the Issuer, the Issuer
is issuing on the date hereof _________ preferred securities, having an
aggregate liquidation amount of $__________, designated the ___% Trust
Originated Preferred Securities (the "Preferred Securities");
WHEREAS, as incentive for the Holders to purchase the Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Preferred Securities Guarantee, to pay to the
Holders of the Preferred Securities the Guarantee Payments (as defined herein)
and to make certain other payments on the terms and conditions set forth herein;
and
WHEREAS, the Guarantor is also executing and delivering a guarantee
agreement (the "Common Securities Guarantee") in substantially identical terms
to this Preferred Securities Guarantee for the benefit of the holders of the
Common Securities (as defined herein), except that if an Event of Default (as
defined in the Indenture), has occurred and is continuing, the rights of holders
of the Common Securities to receive Guarantee Payments under the Common
Securities Guarantee are subordinated to the rights of Holders of Preferred
Securities to receive Guarantee Payments under this Preferred Securities
Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Preferred Securities
Guarantee for the benefit of the Holders.
<PAGE>
ARTICLE I.
DEFINITIONS AND INTERPRETATION
SECTION 1.1. Definitions and Interpretation. In this Preferred
Securities Guarantee, unless the context otherwise requires:
(a) Capitalized terms used in this Preferred Securities Guarantee
but not defined in the preamble above have the respective meanings
assigned to them in this Section 1.1;
(b) a term defined anywhere in this Preferred Securities Guarantee
has the same meaning throughout;
(c) all references to "the Preferred Securities Guarantee" or "this
Preferred Securities Guarantee" are to this Preferred Securities Guarantee
as modified, supplemented or amended from time to time;
(d) all references in this Preferred Securities Guarantee to
Articles and Sections are to Articles and Sections of this Preferred
Securities Guarantee, unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Preferred Securities Guarantee, unless otherwise defined
in this Preferred Securities Guarantee or unless the context otherwise
requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405
of the Securities Act of 1933, as amended, or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is authorized
to bind such Person.
"Business Day" means any day other than a day on which banking
institutions in the City of New York, New York are authorized or required by any
applicable law to close.
"Common Securities" means the securities representing common
undivided beneficial interests in the assets of the Issuer.
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"Corporate Trust Office" means the office of the Preferred Guarantee
Trustee at which the corporate trust business of the Preferred Guarantee Trustee
shall, at any particular time, be principally administered, which office at the
date of execution of this Agreement is located at Wilmington Trust Company,
Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890,
Attention: Corporate Trust Administration.
"Covered Person" means any Holder or beneficial owner of Preferred
Securities.
"Debentures" means the series of junior subordinated debt securities
of the Guarantor designated the ___% Subordinated Debentures due 20__, Series __
held by the Institutional Trustee (as defined in the Declaration) of the Issuer.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Preferred Securities Guarantee.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Preferred Securities, to the extent not
paid or made by the Issuer: (i) any accrued and unpaid Distributions (as defined
in the Declaration) that are required to be paid on such Preferred Securities to
the extent the Issuer shall have funds available therefor, (ii) the redemption
price, including all accrued and unpaid Distributions to the date of redemption
(the "Redemption Price") to the extent the Issuer has funds available therefor,
with respect to any Preferred Securities called for redemption by the Issuer,
and (iii) upon a voluntary or involuntary dissolution, winding-up or termination
of the Issuer (other than in connection with the distribution of Debentures to
the Holders in exchange for Preferred Securities as provided in the
Declaration), the lesser of (a) the aggregate of the liquidation amount and all
accrued and unpaid Distributions on the Preferred Securities to the date of
payment, to the extent the Issuer shall have funds available therefor, and (b)
the amount of assets of the Issuer remaining available for distribution to
Holders in liquidation of the Issuer (in either case, the "Liquidation
Distribution"). If an event of default under the Indenture has occurred and is
continuing, the rights of holders of the Common Securities to receive payments
under the Common Securities Guarantee Agreement are subordinated to the rights
of Holders of Preferred Securities to receive Guarantee Payments.
"Holder" shall mean any holder, as registered on the books and
records of the Issuer of any Preferred Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the Guarantor.
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"Indemnified Person" means the Preferred Guarantee Trustee, any
Affiliate of the Preferred Guarantee Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives, nominees,
custodians or agents of the Preferred Guarantee Trustee.
"Indenture" means the Indenture dated as of June 1, 1994, among the
Guarantor (the "Debenture Issuer") and AmSouth Bank (as successor by merger to
AmSouth Bank of Alabama, successor by conversion of charter to AmSouth Bank
N.A.), as trustee, and any indenture supplemental thereto pursuant to which
certain subordinated debt securities of the Debenture Issuer are to be issued to
the Institutional Trustee of the Issuer.
"Majority in liquidation amount of the Securities" means, except as
provided by the Trust Indenture Act, a vote by Holder(s) of Preferred
Securities, voting separately as a class, of more than 50% of the liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined) of all Preferred Securities.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Preferred Securities Guarantee shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definition relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
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"Preferred Guarantee Trustee" means Wilmington Trust Company until a
Successor Preferred Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Preferred Securities Guarantee and
thereafter means each such Successor Preferred Guarantee Trustee.
"Responsible Officer" means, with respect to the Preferred Guarantee
Trustee, any officer within the Corporate Trust Office of the Preferred
Guarantee Trustee, including any vice-president, any assistant vice-president,
any assistant secretary, the treasurer, any assistant treasurer or other officer
of the Corporate Trust Office of the Preferred Guarantee Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of that officer's
knowledge of and familiarity with the particular subject.
"Successor Preferred Guarantee Trustee" means a successor Preferred
Guarantee Trustee possessing the qualifications to act as Preferred Guarantee
Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
ARTICLE II.
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application. (a) This Preferred
Securities Guarantee is subject to the provisions of the Trust Indenture Act
that are required to be part of this Preferred Securities Guarantee and shall,
to the extent applicable, be governed by such provisions; and
(b) if and to the extent that any provision of this Preferred
Securities Guarantee limits, qualifies or conflicts with the duties imposed by
Section 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
SECTION 2.2. Lists of Holders of Securities. (a) The Guarantor shall
provide the Preferred Guarantee Trustee with a list, in such form as the
Preferred Guarantee Trustee may reasonably require, of the names and addresses
of the Holders of the Preferred Securities ("List of Holders") as of such date,
(i) concurrently with the provision of such a list to the Institutional Trustee
pursuant to the Declaration, and (ii) at any time within 30 days of receipt by
the Guarantor of a written request for a List of Holders as of a date no more
than 14 days
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before such List of Holders is given to the Preferred Guarantee Trustee
provided, that the Guarantor shall not be obligated to provide such List of
Holders at any time the List of Holders does not differ from the most recent
List of Holders given to the Preferred Guarantee Trustee by the Guarantor. The
Preferred Guarantee Trustee may destroy any List of Holders previously given to
it on receipt of a new List of Holders.
(b) The Preferred Guarantee Trustee shall comply with its
obligations under Section 311(a), 311(b) and Section 312(b) of the Trust
Indenture Act.
SECTION 2.3. Reports by the Preferred Guarantee Trustee. Within 60
days after May 15 of each year, the Preferred Guarantee Trustee shall provide to
the Holders of the Preferred Securities such reports as are required by Section
313 of the Trust Indenture Act, if any, in the form and in the manner provided
by Section 313 of the Trust Indenture Act. The Preferred Guarantee Trustee shall
also comply with the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4. Periodic Reports to Preferred Guarantee Trustee. The
Guarantor shall provide to the Preferred Guarantee Trustee such documents,
reports and information as required by Section 314 (if any) and the compliance
certificate required by Section 314 of the Trust Indenture Act in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
SECTION 2.5. Evidence of Compliance with Conditions Precedent. The
Guarantor shall provide to the Preferred Guarantee Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this Preferred
Securities Guarantee that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) may be given in the form of an
Officers' Certificate.
SECTION 2.6. Events of Default; Waiver. The Holders of a Majority in
liquidation amount of Preferred Securities may, by vote, on behalf of the
Holders of all of the Preferred Securities, waive any past Event of Default and
its consequences. Upon such waiver, any such Event of Default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Preferred Securities Guarantee, but no such
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent thereon.
SECTION 2.7. Event of Default; Notice. (a) The Preferred Guarantee
Trustee shall, within 90 days after the occurrence of an Event of Default,
transmit by mail, first class postage prepaid, to the Holders of the Preferred
Securities, notices of all Events of
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Default actually known to a Responsible Officer of the Preferred Guarantee
Trustee, unless such defaults have been cured before the giving of such notice,
provided, that, the Preferred Guarantee Trustee shall be protected in
withholding such notice if and so long as a Responsible Officer of the Preferred
Guarantee Trustee in good faith determines that the withholding of such notice
is in the interests of the Holders of the Preferred Securities.
(b) The Preferred Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Preferred Guarantee Trustee shall
have received written notice, or unless a Responsible Officer of the Preferred
Guarantee Trustee charged with the administration of the Declaration shall have
obtained actual knowledge thereof.
SECTION 2.8. Conflicting Interests. The Declaration shall be deemed
to be specifically described in this Preferred Securities Guarantee for the
purposes of clause (i) of the first proviso contained in Section 310(b) of the
Trust Indenture Act.
ARTICLE III.
POWERS, DUTIES AND RIGHTS OF
PREFERRED GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Preferred Guarantee Trustee.
(a) This Preferred Securities Guarantee shall be held by the Preferred Guarantee
Trustee for the benefit of the Holders of the Preferred Securities, and the
Preferred Guarantee Trustee shall not transfer this Preferred Securities
Guarantee to any Person except a Holder of Preferred Securities exercising his
or her rights pursuant to Section 5.4(b) or to a Successor Preferred Guarantee
Trustee on acceptance by such Successor Preferred Guarantee Trustee of its
appointment to act as Successor Preferred Guarantee Trustee. The right, title
and interest of the Preferred Guarantee Trustee shall automatically vest in any
Successor Preferred Guarantee Trustee, and such vesting and cessation of title
shall be effective whether or not conveyancing documents have been executed and
delivered pursuant to the appointment of such Successor Preferred Guarantee
Trustee.
(b) If an Event of Default actually known to a Responsible Officer
of the Preferred Guarantee Trustee has occurred and is continuing, the Preferred
Guarantee Trustee shall enforce this Preferred Securities Guarantee for the
benefit of the Holders of the Preferred Securities.
(c) The Preferred Guarantee Trustee, before the occurrence of any
Event of Default and after the curing of all Events of Default that may have
occurred, shall undertake to
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perform only such duties as are specifically set forth in this Preferred
Securities Guarantee, and no implied covenants shall be read into this Preferred
Securities Guarantee against the Preferred Guarantee Trustee. In case an Event
of Default has occurred (that has not been cured or waived pursuant to Section
2.6) and is actually known to a Responsible Officer of the Preferred Guarantee
Trustee, the Preferred Guarantee Trustee shall exercise such of the rights and
powers vested in it by this Preferred Securities Guarantee, and use the same
degree of care and skill in its exercise thereof, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(d) No provision of this Preferred Securities Guarantee shall be
construed to relieve the Preferred Guarantee Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Preferred Guarantee
Trustee shall be determined solely by the express provisions of this
Preferred Securities Guarantee, and the Preferred Guarantee Trustee
shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Preferred
Securities Guarantee, and no implied covenants or obligations shall
be read into this Preferred Securities Guarantee against the
Preferred Guarantee Trustee; and
(B) in the absence of bad faith on the part of the Preferred
Guarantee Trustee, the Preferred Guarantee Trustee may conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Preferred Guarantee Trustee and conforming to the
requirements of this Preferred Securities Guarantee; but in the case
of any such certificates or opinions that by any provision hereof
are specifically required to be furnished to the Preferred Guarantee
Trustee, the Preferred Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Preferred Securities Guarantee;
(ii) the Preferred Guarantee Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of the
Preferred Guarantee Trustee, unless it shall be proved that the Preferred
Guarantee Trustee was negligent in ascertaining the pertinent facts upon
which such judgment was made;
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(iii) the Preferred Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a Majority
in liquidation amount of the Preferred Securities relating to the time,
method and place of conducting any proceeding for any remedy available to
the Preferred Guarantee Trustee, or exercising any trust or power
conferred upon the Preferred Guarantee Trustee under this Preferred
Securities Guarantee; and
(iv) no provision of this Preferred Securities Guarantee shall
require the Preferred Guarantee Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers, if the
Preferred Guarantee Trustee shall have reasonable grounds for believing
that the repayment of such funds or liability is not reasonably assured to
it under the terms of this Preferred Securities Guarantee or indemnity,
reasonably satisfactory to the Preferred Guarantee Trustee, against such
risk or liability is not reasonably assured to it.
SECTION 3.2. Certain Rights of Preferred Guarantee Trustee. (a)
Subject to the provisions of Section 3.1:
(i) The Preferred Guarantee Trustee may conclusively rely, and shall
be fully protected in acting or refraining from acting upon, any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document believed by it to be genuine
and to have been signed, sent or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Preferred Securities Guarantee shall be sufficiently evidenced by a
Direction (as defined in the Declaration) or an Officers' Certificate.
(iii) Whenever, in the administration of this Preferred Securities
Guarantee, the Preferred Guarantee Trustee shall deem it desirable that a
matter be proved or established before taking, suffering or omitting any
action hereunder, the Preferred Guarantee Trustee (unless other evidence
is herein specifically prescribed) may, in the absence of bad faith on its
part, request and conclusively rely upon an Officers' Certificate which,
upon receipt of such request, shall be promptly delivered by the
Guarantor.
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(iv) The Preferred Guarantee Trustee shall have no duty to see to
any recording, filing or registration of any instrument (or any
rerecording, refiling or registration thereof).
(v) The Preferred Guarantee Trustee may consult with counsel, and
the written advice or opinion of such counsel with respect to legal
matters shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted by it hereunder in good faith and
in accordance with such advice or opinion. Such counsel may be counsel to
the Guarantor or any of its Affiliates and may include any of its
employees. The Preferred Guarantee Trustee shall have the right at any
time to seek instructions concerning the administration of this Preferred
Securities Guarantee from any court of competent jurisdiction.
(vi) The Preferred Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Preferred
Securities Guarantee at the request or direction of any Holder, unless
such Holder shall have provided to the Preferred Guarantee Trustee such
security and indemnity, reasonably satisfactory to the Preferred Guarantee
Trustee, against the costs, expenses (including attorneys' fees and
expenses and the expenses of the Preferred Guarantee Trustee's agents,
nominees or custodians) and liabilities that might be incurred by it in
complying with such request or direction, including such reasonable
advances as may be requested by the Preferred Guarantee Trustee; provided
that, nothing contained in this Section 3.2(a)(vi) shall be taken to
relieve the Preferred Guarantee Trustee, upon the occurrence of an Event
of Default, of its obligation to exercise the rights and powers vested in
it by this Preferred Securities Guarantee.
(vii) The Preferred Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Preferred Guarantee
Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit.
(viii) The Preferred Guarantee Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or by
or through agents, nominees, custodians or attorneys, and the Preferred
Guarantee Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
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(ix) Any action taken by the Preferred Guarantee Trustee or its
agents hereunder shall bind the Holders of the Preferred Securities, and
the signature of the Preferred Guarantee Trustee or its agents alone shall
be sufficient and effective to perform any such action. No third party
shall be required to inquire as to the authority of the Preferred
Guarantee Trustee to so act or as to its compliance with any of the terms
and provisions of this Preferred Securities Guarantee, both of which shall
be conclusively evidenced by the Preferred Guarantee Trustee's or its
agent's taking such action.
(x) Whenever in the administration of this Preferred Securities
Guarantee the Preferred Guarantee Trustee shall deem it desirable to
receive instructions with respect to enforcing any remedy or right or
taking any other action hereunder, the Preferred Guarantee Trustee (i) may
request instructions from the Holders of a Majority in liquidation amount
of the Preferred Securities, (ii) may refrain from enforcing such remedy
or right or taking such other action until such instructions are received,
and (iii) shall be protected in conclusively relying on or acting in
accordance with such instructions.
(b) No provision of this Preferred Securities Guarantee shall be
deemed to impose any duty or obligation on the Preferred Guarantee Trustee to
perform any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it in any jurisdiction in which it shall be illegal, or
in which the Preferred Guarantee Trustee shall be unqualified or incompetent in
accordance with applicable law, to perform any such act or acts or to exercise
any such right, power, duty or obligation. No permissive power or authority
available to the Preferred Guarantee Trustee shall be construed to be a duty.
SECTION 3.3. Not Responsible for Recitals or Issuance of Guarantee.
The recitals contained in this Guarantee shall be taken as the statements of the
Guarantor, and the Preferred Guarantee Trustee does not assume any
responsibility for their correctness. The Preferred Guarantee Trustee makes no
representation as to the validity or sufficiency of this Preferred Securities
Guarantee.
ARTICLE IV.
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1. Preferred Guarantee Trustee; Eligibility. (a) There
shall at all times be a Preferred Guarantee Trustee which shall:
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(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation or Person permitted by the
Securities and Exchange Commission to act as an institutional trustee
under the Trust Indenture Act, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
50 million U.S. dollars ($50,000,000), and subject to supervision or
examination by Federal, State, Territorial or District of Columbia
authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the supervising or
examining authority referred to above, then, for the purposes of this
Section 4.1(a)(ii), the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published.
(b) If at any time the Preferred Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Preferred Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.2 (c).
(c) If the Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Preferred Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
SECTION 4.2. Appointment, Removal and Resignation of Preferred
Guarantee Trustees. (a) Subject to Section 4.2(b), the Preferred Guarantee
Trustee may be appointed or removed without cause at any time by the Guarantor.
(b) The Preferred Guarantee Trustee shall not be removed in
accordance with Section 4.2(a) until a Successor Preferred Guarantee Trustee has
been appointed and has accepted such appointment by written instrument executed
by such Successor Preferred Guarantee Trustee and delivered to the Guarantor.
(c) The Preferred Guarantee Trustee appointed to office shall hold
office until a Successor Preferred Guarantee Trustee shall have been appointed
or until its removal or resignation. The Preferred Guarantee Trustee may resign
from office (without need for prior or subsequent accounting) by an instrument
in writing executed by the Preferred Guarantee Trustee and delivered to the
Guarantor, which resignation shall not take effect until a Successor Preferred
Guarantee Trustee has been appointed and has accepted such appointment
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by instrument in writing executed by such Successor Preferred Guarantee Trustee
and delivered to the Guarantor and the resigning Preferred Guarantee Trustee.
(d) If no Successor Preferred Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.2 within 60
days after delivery to the Guarantor of an instrument of resignation, the
resigning Preferred Guarantee Trustee may petition any court of competent
jurisdiction for appointment of a Successor Preferred Guarantee Trustee. Such
court may thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Preferred Guarantee Trustee.
(e) No Preferred Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Preferred Guarantee Trustee.
(f) Upon termination of this Preferred Securities Guarantee or
removal or resignation of the Preferred Guarantee Trustee pursuant to this
Section 4.2, the Guarantor shall pay to the Preferred Guarantee Trustee all
amounts accrued to the date of such termination, removal or resignation.
ARTICLE V.
GUARANTEE
SECTION 5.1. Guarantee. The Guarantor irrevocably and
unconditionally agrees to pay in full to the Holders the Guarantee Payments
(without duplication of amounts theretofore paid by the Issuer), as and when
due, regardless of any defense, right of set-off or counterclaim that the Issuer
may have or assert. The Guarantor's obligation to make a Guarantee Payment may
be satisfied by direct payment of the required amounts by the Guarantor to the
Holders or by causing the Issuer to pay such amounts to the Holders.
SECTION 5.2. Waiver of Notice and Demand. The Guarantor hereby
waives notice of acceptance of this Preferred Securities Guarantee and of any
liability to which it applies or may apply, presentment, demand for payment, any
right to require a proceeding first against the Issuer or any other Person
before proceeding against the Guarantor, protest, notice of nonpayment, notice
of dishonor, notice of redemption and all other notices and demands.
SECTION 5.3. Obligations Not Affected. The obligations, covenants,
agreements and duties of the Guarantor under this Preferred Securities Guarantee
shall in no
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way be affected or impaired by reason of the happening from time to time of any
of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Preferred
Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or
any portion of the Distributions, Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Preferred
Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Preferred
Securities (other than an extension of time for payment of Distributions,
Redemption Price, Liquidation Distribution or other sum payable that
results from the extension of any interest payment period on the
Debentures or any extension of the maturity date of the Debentures
permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Holders pursuant to the terms of the Preferred
Securities, or any action on the part of the Issuer granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the
Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it
being the intent of this Section 5.3 that the obligations of the Guarantor
hereunder shall be absolute and unconditional under any and all
circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
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SECTION 5.4. Rights of Holders. (a) The Holders of a Majority in
liquidation amount of the Preferred Securities have the right to direct the
time, method and place of conducting of any proceeding for any remedy available
to the Preferred Guarantee Trustee in respect of this Preferred Securities
Guarantee or exercising any trust or power conferred upon the Preferred
Guarantee Trustee under this Preferred Securities Guarantee.
(b) If the Preferred Guarantee Trustee fails to enforce this
Preferred Securities Guarantee with respect to the right of any Holders to
receive any Guarantee Payment in accordance herewith, such Holder may directly
institute a proceeding against the Guarantor for enforcement of the Preferred
Security Guarantee for such payment. The Guarantor waives any right or remedy to
require that any action be brought first against the Issuer or any other Person
or entity before proceeding directly against the Guarantor.
SECTION 5.5. Guarantee of Payment. This Preferred Securities
Guarantee creates a guarantee of payment and not of collection.
SECTION 5.6. Subrogation. The Guarantor shall be subrogated to all
(if any) rights of the Holders of Preferred Securities against the Issuer in
respect of any amounts paid to such Holders by the Guarantor under this
Preferred Securities Guarantee; provided, however, that the Guarantor shall not
(except to the extent required by mandatory provisions of law) be entitled to
enforce or exercise any right that it may acquire by way of subrogation or any
indemnity, reimbursement or other agreement, in all cases as a result of payment
under this Preferred Securities Guarantee, if, at the time of any such payment,
any amounts are due and unpaid under this Preferred Securities Guarantee. If any
amount shall be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Holders and to pay
over such amount to the Holders.
SECTION 5.7. Independent Obligations. The Guarantor acknowledges
that its obligations hereunder are independent of the obligations of the Issuer
with respect to the Preferred Securities, and that the Guarantor shall be liable
as principal and as debtor hereunder to make Guarantee Payments pursuant to the
terms of this Preferred Securities Guarantee notwithstanding the occurrence of
any event referred to in subsections (a) through (g), inclusive, of Section 5.3
hereof.
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ARTICLE VI.
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1. Limitation of Transactions. So long as any Preferred
Securities remain outstanding, if there shall have occurred and be continuing
an Event of Default or an event of default under the Declaration, then (a)
the Guarantor shall not declare or pay any dividend on, make any
distributions with respect to, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock (other than (i)
purchases or acquisitions of shares of its common stock in connection with
the satisfaction by the Guarantor of its obligations under any employee
benefit plans or the satisfaction by the Guarantor of its obligations
pursuant to any contract or security requiring the Guarantor to purchase
shares of its common stock, (ii) as a result of a reclassification of its
capital stock or the exchange or conversion of one class or series of its
capital stock for another class or series of its capital stock, (iii) the
purchase of fractional interests in shares of its capital stock pursuant to
the conversion or exchange provisions of such capital stock or the security
being converted or exchanged, and (iv) redemptions or purchases pursuant to
the Guarantor's Rights Agreement, dated August 7, 1995, between the Guarantor
and AmSouth Bank of Alabama as Rights Agent), (b) the Guarantor shall not
make any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities (including guarantees) issued by the
Guarantor which rank pari passu with or junior to the Debentures and (c) the
Guarantor shall not make any guarantee payments with respect to the foregoing
(other than pursuant to this Agreement, the Common Securities Guarantee,
dated as of __________, 199_ (the "Common Guarantee") of the Guarantor with
respect to the ___% Trust Originated Common Securities of the Trust, the
Preferred Securities Guantee Agreement, dated ________,1997 (the "Trust II
Preferred Guarantee"), with respect to the ___% Trust Originated Preferred
Securities of PLC Captial Trust II (the "Trust II TOPrS"), the Common
Securities Guarantee Agreement, dated ___, 1997 (the "Trust II Common
Guarantee") with respect to the ___% Trust Originated Common Securites of PLC
Capital Trust II (the "Trust II Common Securites) the Preferred Securities
Guarantee Agreement, dated April 29, 1997 of the Guarantor with respect to
the 8 1/4% Trust Originated Preferred Securities of PLC Capital Trust I, the
Common Securities Guarantee Agreement, dated as of April 29, 1997 of the
Guarantor with respect to the 8 1/4% Trust Originated Common Securities of
PLC Capital Trust I and the Guarantee Agreement, dated as of June 9, 1994 of
the Guarantor with respect to the 9% Cumulative Monthly Income Preferred
Securities, Series A of PLC Capital L.L.C.).
SECTION 6.2. Ranking. This Preferred Securities Guarantee will
constitute an unsecured obligation of the Guarantor and will rank (i)
subordinate and junior in right of payment to all present and future Senior
Indebtedness (as such term is defined in the Indenture), (ii) pari passu with
the Common Guarantee, the Debentures, the Guarantor's Guarantee of PLC Capital
L.L.C.'s 9% Cumulative Monthly Income Preferred Securities, Series A, having
an agrregate liquidation amount of $55 million, the Company's 9%
Subordinated Debentures, due 2024, Series A, having an aggregate liquidation
amount of $69.6 million, the Trust II Preferred Guarantee with respect to the
Trust II TOPrS, having an aggregate liquidation amount of $___million, the
Trust II Common Guarantee with respect to the Trust II Common Securities,
having an aggregate liquidation amount of $___million, the Company's ___%
Subordinated Debentures due _____, Series ____, having an aggregate
liquidation amount of $______million, the Company's Guarantee of PLC Capital
Trust I's 8 1/4% Trust Originated Preferred Securities having an aggregate
liquidation amount of $75 million, the Company's Guarantee of PLC Capital
Trust I's 8 1/4% Trust Originated Common Securities, having an aggregate
liquidation amount of $23 milliion and the Company's 8 1/4% Subordinated
Debentures due 2024, Series B, having an aggregate liquidation amount of
$77.3 million and any other liabilities or obligations that may be pari
passu by their terms and (iii) senior to the Guarantor's common stock, the
most senior preferred or preference stock now or hereafter issued by the
Guarantor
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and with any guarantee now or hereafter entered into by the Guarantor in respect
of any preferred or preference stock of any affiliate of the Guarantor.
ARTICLE VII.
TERMINATION
SECTION 7.1. Termination. This Preferred Securities Guarantee shall
terminate upon (i) full payment of the Redemption Price of all Preferred
Securities, (ii) upon the distribution of the Debentures to the Holders of all
of the Preferred Securities or (iii) upon full payment of the amounts payable in
accordance with the Declaration upon liquidation of the Issuer. Notwithstanding
the foregoing, this Preferred Securities Guarantee will continue to be effective
or will be reinstated, as the case may be, if at any time any Holder of
Preferred Securities must restore payment of any sums paid under the Preferred
Securities or under this Preferred Securities Guarantee.
ARTICLE VIII.
INDEMNIFICATION
SECTION 8.1. Exculpation. (a) No Indemnified Person shall be liable,
responsible or accountable in damages or otherwise to the Guarantor or any
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 in
accordance with this Preferred Securities Guarantee and in a manner that such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Preferred Securities Guarantee or
by law, except that an Indemnified Person shall be liable for any such loss,
damage or claim incurred by reason of such Indemnified Person's negligence or
willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor 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 Guarantor, 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 Holders of Preferred Securities
might properly be paid.
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SECTION 8.2. Indemnification. (a) To the fullest extent permitted by
applicable law, the Guarantor shall indemnify and hold harmless each Indemnified
Person from and against 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 in accordance with this Guarantee Agreement and in a manner
such Indemnified Person reasonably believed to be within the scope of authority
conferred on such Indemnified Person by this Guarantee 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 negligence or
willful misconduct with respect to such acts or omissions.
(b) To the fullest extent permitted by applicable law, reasonable
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 Guarantor prior to the final disposition of such claim, demand,
action, suit or proceeding upon receipt by the Guarantor 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 8.2(a).
(c) The obligation to indemnify as set forth in this Section 8.2
shall survive the termination of the Preferred Securities Guarantee.
ARTICLE IX.
MISCELLANEOUS
SECTION 9.1. Successors and Assigns. All guarantees and agreements
contained in this Preferred Securities Guarantee shall bind the successors,
assigns, receivers, trustees and representatives of the Guarantor and shall
inure to the benefit of the Holders of the Preferred Securities then
outstanding.
SECTION 9.2. Amendments. Except with respect to any changes that do
not adversely affect the rights of Holders (in which case no consent of Holders
will be required), this Preferred Securities Guarantee may only be amended with
the prior approval of the Holders of at least a Majority in liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of all the outstanding Preferred Securities.
The provisions of Section 12.2 of the Declaration with respect to meetings of
Holders of the Securities apply to the giving of such approval.
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SECTION 9.3. Notices. All notices provided for in this Preferred
Securities Guarantee shall be in writing, duly signed by the party giving such
notice, and shall be delivered, telecopied or mailed by registered or certified
mail, as follows:
(a) if given to the Preferred Guarantee Trustee, at the Preferred
Guarantee Trustee's mailing address set forth below (or such other address
as the Preferred Guarantee Trustee may give notice of to the Holders of
the Preferred Securities):
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
(b) If given to the Guarantor, at the Guarantor's mailing address
set forth below (or such other address as the Guarantor may give notice of to
the Holders of the Preferred Securities):
Protective Life Corporation
2801 Highway 280 South
Birmingham, Alabama 35223
Attention: Secretary
(c) If given to any Holder of Preferred Securities, at the address
set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 9.4. Benefit. This Preferred Securities Guarantee is solely
for the benefit of the Holders of the Preferred Securities and, subject to
Section 3.1(a), is not separately transferable from the Preferred Securities.
SECTION 9.5. Governing Law. THIS PREFERRED SECURITIES GUARANTEE
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK.
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THIS PREFERRED SECURITIES GUARANTEE is executed as of the day and
year first above written.
PROTECTIVE LIFE CORPORATION, as Guarantor
By:
----------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY, as Preferred
Guarantee Trustee
By:
----------------------------------
Name:
Title:
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EXHIBIT 4(x)
Draft-July 2, 1997
================================================================================
PREFERRED SECURITIES GUARANTEE AGREEMENT
PLC CAPITAL TRUST IV
Dated as of _________, 199_
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I.
DEFINITIONS AND INTERPRETATION
SECTION 1.1. Definitions and Interpretation...........................2
ARTICLE II.
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application.........................5
SECTION 2.2. Lists of Holders of Securities...........................5
SECTION 2.3. Reports by the Preferred Guarantee Trustee...............6
SECTION 2.4. Periodic Reports to Preferred Guarantee Trustee..........6
SECTION 2.5. Evidence of Compliance with Conditions Precedent.........6
SECTION 2.6. Events of Default; Waiver................................6
SECTION 2.7. Event of Default; Notice.................................6
SECTION 2.8. Conflicting Interests....................................7
ARTICLE III.
POWERS, DUTIES AND RIGHTS OF
PREFERRED GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Preferred Guarantee Trustee.....7
SECTION 3.2. Certain Rights of Preferred Guarantee Trustee............9
SECTION 3.3. Not Responsible for Recitals or Issuance of Guarantee...11
ARTICLE IV.
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1. Preferred Guarantee Trustee; Eligibility................11
SECTION 4.2. Appointment, Removal and Resignation of Preferred
Guarantee Trustees......................................12
ARTICLE V.
GUARANTEE
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Page
----
SECTION 5.1. Guarantee...............................................13
SECTION 5.2. Waiver of Notice and Demand.............................13
SECTION 5.3. Obligations Not Affected................................13
SECTION 5.4. Rights of Holders.......................................15
SECTION 5.5. Guarantee of Payment....................................15
SECTION 5.6. Subrogation.............................................15
SECTION 5.7. Independent Obligations.................................15
ARTICLE VI.
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1. Limitation of Transactions..............................16
SECTION 6.2. Ranking.................................................16
ARTICLE VII.
TERMINATION
SECTION 7.1. Termination.............................................17
ARTICLE VIII.
INDEMNIFICATION
SECTION 8.1. Exculpation.............................................17
SECTION 8.2. Indemnification.........................................18
ARTICLE IX.
MISCELLANEOUS
SECTION 9.1. Successors and Assigns..................................18
SECTION 9.2. Amendments..............................................18
SECTION 9.3. Notices.................................................19
SECTION 9.4. Benefit.................................................19
SECTION 9.5. Governing Law...........................................19
ii
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PREFERRED SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Preferred Securities Guarantee"),
dated as of ______________, 199_, is executed and delivered by Protective Life
Corporation, a Delaware corporation (the "Guarantor"), and Wilmington Trust
Company, as trustee (the "Preferred Guarantee Trustee"), for the benefit of the
Holders (as defined herein) from time to time of the Preferred Securities (as
defined herein) of PLC Capital Trust IV, a Delaware statutory business trust
(the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust
(the "Declaration"), dated as of _____________, 199_, among the trustees of the
Issuer named therein, the Guarantor, as sponsor, and the holders from time to
time of undivided beneficial interests in the assets of the Issuer, the Issuer
is issuing on the date hereof _________ preferred securities, having an
aggregate liquidation amount of $__________, designated the ___% Trust
Originated Preferred Securities (the "Preferred Securities");
WHEREAS, as incentive for the Holders to purchase the Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Preferred Securities Guarantee, to pay to the
Holders of the Preferred Securities the Guarantee Payments (as defined herein)
and to make certain other payments on the terms and conditions set forth herein;
and
WHEREAS, the Guarantor is also executing and delivering a guarantee
agreement (the "Common Securities Guarantee") in substantially identical terms
to this Preferred Securities Guarantee for the benefit of the holders of the
Common Securities (as defined herein), except that if an Event of Default (as
defined in the Indenture), has occurred and is continuing, the rights of holders
of the Common Securities to receive Guarantee Payments under the Common
Securities Guarantee are subordinated to the rights of Holders of Preferred
Securities to receive Guarantee Payments under this Preferred Securities
Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Preferred Securities
Guarantee for the benefit of the Holders.
<PAGE>
ARTICLE I.
DEFINITIONS AND INTERPRETATION
SECTION 1.1. Definitions and Interpretation. In this Preferred
Securities Guarantee, unless the context otherwise requires:
(a) Capitalized terms used in this Preferred Securities Guarantee
but not defined in the preamble above have the respective meanings
assigned to them in this Section 1.1;
(b) a term defined anywhere in this Preferred Securities Guarantee
has the same meaning throughout;
(c) all references to "the Preferred Securities Guarantee" or "this
Preferred Securities Guarantee" are to this Preferred Securities Guarantee
as modified, supplemented or amended from time to time;
(d) all references in this Preferred Securities Guarantee to
Articles and Sections are to Articles and Sections of this Preferred
Securities Guarantee, unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Preferred Securities Guarantee, unless otherwise defined
in this Preferred Securities Guarantee or unless the context otherwise
requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405
of the Securities Act of 1933, as amended, or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is authorized
to bind such Person.
"Business Day" means any day other than a day on which banking
institutions in the City of New York, New York are authorized or required by any
applicable law to close.
"Common Securities" means the securities representing common
undivided beneficial interests in the assets of the Issuer.
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"Corporate Trust Office" means the office of the Preferred Guarantee
Trustee at which the corporate trust business of the Preferred Guarantee Trustee
shall, at any particular time, be principally administered, which office at the
date of execution of this Agreement is located at Wilmington Trust Company,
Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890,
Attention: Corporate Trust Administration.
"Covered Person" means any Holder or beneficial owner of Preferred
Securities.
"Debentures" means the series of junior subordinated debt securities
of the Guarantor designated the ___% Subordinated Debentures due 20__, Series __
held by the Institutional Trustee (as defined in the Declaration) of the Issuer.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Preferred Securities Guarantee.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Preferred Securities, to the extent not
paid or made by the Issuer: (i) any accrued and unpaid Distributions (as defined
in the Declaration) that are required to be paid on such Preferred Securities to
the extent the Issuer shall have funds available therefor, (ii) the redemption
price, including all accrued and unpaid Distributions to the date of redemption
(the "Redemption Price") to the extent the Issuer has funds available therefor,
with respect to any Preferred Securities called for redemption by the Issuer,
and (iii) upon a voluntary or involuntary dissolution, winding-up or termination
of the Issuer (other than in connection with the distribution of Debentures to
the Holders in exchange for Preferred Securities as provided in the
Declaration), the lesser of (a) the aggregate of the liquidation amount and all
accrued and unpaid Distributions on the Preferred Securities to the date of
payment, to the extent the Issuer shall have funds available therefor, and (b)
the amount of assets of the Issuer remaining available for distribution to
Holders in liquidation of the Issuer (in either case, the "Liquidation
Distribution"). If an event of default under the Indenture has occurred and is
continuing, the rights of holders of the Common Securities to receive payments
under the Common Securities Guarantee Agreement are subordinated to the rights
of Holders of Preferred Securities to receive Guarantee Payments.
"Holder" shall mean any holder, as registered on the books and
records of the Issuer of any Preferred Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the Guarantor.
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"Indemnified Person" means the Preferred Guarantee Trustee, any
Affiliate of the Preferred Guarantee Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives, nominees,
custodians or agents of the Preferred Guarantee Trustee.
"Indenture" means the Indenture dated as of June 1, 1994, among the
Guarantor (the "Debenture Issuer") and AmSouth Bank (as successor by merger to
AmSouth Bank of Alabama, successor by conversion of charter to AmSouth Bank
N.A.), as trustee, and any indenture supplemental thereto pursuant to which
certain subordinated debt securities of the Debenture Issuer are to be issued to
the Institutional Trustee of the Issuer.
"Majority in liquidation amount of the Securities" means, except as
provided by the Trust Indenture Act, a vote by Holder(s) of Preferred
Securities, voting separately as a class, of more than 50% of the liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined) of all Preferred Securities.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Preferred Securities Guarantee shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definition relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
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"Preferred Guarantee Trustee" means Wilmington Trust Company until a
Successor Preferred Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Preferred Securities Guarantee and
thereafter means each such Successor Preferred Guarantee Trustee.
"Responsible Officer" means, with respect to the Preferred Guarantee
Trustee, any officer within the Corporate Trust Office of the Preferred
Guarantee Trustee, including any vice-president, any assistant vice-president,
any assistant secretary, the treasurer, any assistant treasurer or other officer
of the Corporate Trust Office of the Preferred Guarantee Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of that officer's
knowledge of and familiarity with the particular subject.
"Successor Preferred Guarantee Trustee" means a successor Preferred
Guarantee Trustee possessing the qualifications to act as Preferred Guarantee
Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
ARTICLE II.
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application. (a) This Preferred
Securities Guarantee is subject to the provisions of the Trust Indenture Act
that are required to be part of this Preferred Securities Guarantee and shall,
to the extent applicable, be governed by such provisions; and
(b) if and to the extent that any provision of this Preferred
Securities Guarantee limits, qualifies or conflicts with the duties imposed by
Section 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
SECTION 2.2. Lists of Holders of Securities. (a) The Guarantor shall
provide the Preferred Guarantee Trustee with a list, in such form as the
Preferred Guarantee Trustee may reasonably require, of the names and addresses
of the Holders of the Preferred Securities ("List of Holders") as of such date,
(i) concurrently with the provision of such a list to the Institutional Trustee
pursuant to the Declaration, and (ii) at any time within 30 days of receipt by
the Guarantor of a written request for a List of Holders as of a date no more
than 14 days
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before such List of Holders is given to the Preferred Guarantee Trustee
provided, that the Guarantor shall not be obligated to provide such List of
Holders at any time the List of Holders does not differ from the most recent
List of Holders given to the Preferred Guarantee Trustee by the Guarantor. The
Preferred Guarantee Trustee may destroy any List of Holders previously given to
it on receipt of a new List of Holders.
(b) The Preferred Guarantee Trustee shall comply with its
obligations under Section 311(a), 311(b) and Section 312(b) of the Trust
Indenture Act.
SECTION 2.3. Reports by the Preferred Guarantee Trustee. Within 60
days after May 15 of each year, the Preferred Guarantee Trustee shall provide to
the Holders of the Preferred Securities such reports as are required by Section
313 of the Trust Indenture Act, if any, in the form and in the manner provided
by Section 313 of the Trust Indenture Act. The Preferred Guarantee Trustee shall
also comply with the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4. Periodic Reports to Preferred Guarantee Trustee. The
Guarantor shall provide to the Preferred Guarantee Trustee such documents,
reports and information as required by Section 314 (if any) and the compliance
certificate required by Section 314 of the Trust Indenture Act in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
SECTION 2.5. Evidence of Compliance with Conditions Precedent. The
Guarantor shall provide to the Preferred Guarantee Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this Preferred
Securities Guarantee that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) may be given in the form of an
Officers' Certificate.
SECTION 2.6. Events of Default; Waiver. The Holders of a Majority in
liquidation amount of Preferred Securities may, by vote, on behalf of the
Holders of all of the Preferred Securities, waive any past Event of Default and
its consequences. Upon such waiver, any such Event of Default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Preferred Securities Guarantee, but no such
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent thereon.
SECTION 2.7. Event of Default; Notice. (a) The Preferred Guarantee
Trustee shall, within 90 days after the occurrence of an Event of Default,
transmit by mail, first class postage prepaid, to the Holders of the Preferred
Securities, notices of all Events of
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Default actually known to a Responsible Officer of the Preferred Guarantee
Trustee, unless such defaults have been cured before the giving of such notice,
provided, that, the Preferred Guarantee Trustee shall be protected in
withholding such notice if and so long as a Responsible Officer of the Preferred
Guarantee Trustee in good faith determines that the withholding of such notice
is in the interests of the Holders of the Preferred Securities.
(b) The Preferred Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Preferred Guarantee Trustee shall
have received written notice, or unless a Responsible Officer of the Preferred
Guarantee Trustee charged with the administration of the Declaration shall have
obtained actual knowledge thereof.
SECTION 2.8. Conflicting Interests. The Declaration shall be deemed
to be specifically described in this Preferred Securities Guarantee for the
purposes of clause (i) of the first proviso contained in Section 310(b) of the
Trust Indenture Act.
ARTICLE III.
POWERS, DUTIES AND RIGHTS OF
PREFERRED GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Preferred Guarantee Trustee.
(a) This Preferred Securities Guarantee shall be held by the Preferred Guarantee
Trustee for the benefit of the Holders of the Preferred Securities, and the
Preferred Guarantee Trustee shall not transfer this Preferred Securities
Guarantee to any Person except a Holder of Preferred Securities exercising his
or her rights pursuant to Section 5.4(b) or to a Successor Preferred Guarantee
Trustee on acceptance by such Successor Preferred Guarantee Trustee of its
appointment to act as Successor Preferred Guarantee Trustee. The right, title
and interest of the Preferred Guarantee Trustee shall automatically vest in any
Successor Preferred Guarantee Trustee, and such vesting and cessation of title
shall be effective whether or not conveyancing documents have been executed and
delivered pursuant to the appointment of such Successor Preferred Guarantee
Trustee.
(b) If an Event of Default actually known to a Responsible Officer
of the Preferred Guarantee Trustee has occurred and is continuing, the Preferred
Guarantee Trustee shall enforce this Preferred Securities Guarantee for the
benefit of the Holders of the Preferred Securities.
(c) The Preferred Guarantee Trustee, before the occurrence of any
Event of Default and after the curing of all Events of Default that may have
occurred, shall undertake to
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perform only such duties as are specifically set forth in this Preferred
Securities Guarantee, and no implied covenants shall be read into this Preferred
Securities Guarantee against the Preferred Guarantee Trustee. In case an Event
of Default has occurred (that has not been cured or waived pursuant to Section
2.6) and is actually known to a Responsible Officer of the Preferred Guarantee
Trustee, the Preferred Guarantee Trustee shall exercise such of the rights and
powers vested in it by this Preferred Securities Guarantee, and use the same
degree of care and skill in its exercise thereof, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(d) No provision of this Preferred Securities Guarantee shall be
construed to relieve the Preferred Guarantee Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Preferred Guarantee
Trustee shall be determined solely by the express provisions of this
Preferred Securities Guarantee, and the Preferred Guarantee Trustee
shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Preferred
Securities Guarantee, and no implied covenants or obligations shall
be read into this Preferred Securities Guarantee against the
Preferred Guarantee Trustee; and
(B) in the absence of bad faith on the part of the Preferred
Guarantee Trustee, the Preferred Guarantee Trustee may conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Preferred Guarantee Trustee and conforming to the
requirements of this Preferred Securities Guarantee; but in the case
of any such certificates or opinions that by any provision hereof
are specifically required to be furnished to the Preferred Guarantee
Trustee, the Preferred Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Preferred Securities Guarantee;
(ii) the Preferred Guarantee Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of the
Preferred Guarantee Trustee, unless it shall be proved that the Preferred
Guarantee Trustee was negligent in ascertaining the pertinent facts upon
which such judgment was made;
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(iii) the Preferred Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a Majority
in liquidation amount of the Preferred Securities relating to the time,
method and place of conducting any proceeding for any remedy available to
the Preferred Guarantee Trustee, or exercising any trust or power
conferred upon the Preferred Guarantee Trustee under this Preferred
Securities Guarantee; and
(iv) no provision of this Preferred Securities Guarantee shall
require the Preferred Guarantee Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers, if the
Preferred Guarantee Trustee shall have reasonable grounds for believing
that the repayment of such funds or liability is not reasonably assured to
it under the terms of this Preferred Securities Guarantee or indemnity,
reasonably satisfactory to the Preferred Guarantee Trustee, against such
risk or liability is not reasonably assured to it.
SECTION 3.2. Certain Rights of Preferred Guarantee Trustee. (a)
Subject to the provisions of Section 3.1:
(i) The Preferred Guarantee Trustee may conclusively rely, and shall
be fully protected in acting or refraining from acting upon, any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document believed by it to be genuine
and to have been signed, sent or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Preferred Securities Guarantee shall be sufficiently evidenced by a
Direction (as defined in the Declaration) or an Officers' Certificate.
(iii) Whenever, in the administration of this Preferred Securities
Guarantee, the Preferred Guarantee Trustee shall deem it desirable that a
matter be proved or established before taking, suffering or omitting any
action hereunder, the Preferred Guarantee Trustee (unless other evidence
is herein specifically prescribed) may, in the absence of bad faith on its
part, request and conclusively rely upon an Officers' Certificate which,
upon receipt of such request, shall be promptly delivered by the
Guarantor.
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(iv) The Preferred Guarantee Trustee shall have no duty to see to
any recording, filing or registration of any instrument (or any
rerecording, refiling or registration thereof).
(v) The Preferred Guarantee Trustee may consult with counsel, and
the written advice or opinion of such counsel with respect to legal
matters shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted by it hereunder in good faith and
in accordance with such advice or opinion. Such counsel may be counsel to
the Guarantor or any of its Affiliates and may include any of its
employees. The Preferred Guarantee Trustee shall have the right at any
time to seek instructions concerning the administration of this Preferred
Securities Guarantee from any court of competent jurisdiction.
(vi) The Preferred Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Preferred
Securities Guarantee at the request or direction of any Holder, unless
such Holder shall have provided to the Preferred Guarantee Trustee such
security and indemnity, reasonably satisfactory to the Preferred Guarantee
Trustee, against the costs, expenses (including attorneys' fees and
expenses and the expenses of the Preferred Guarantee Trustee's agents,
nominees or custodians) and liabilities that might be incurred by it in
complying with such request or direction, including such reasonable
advances as may be requested by the Preferred Guarantee Trustee; provided
that, nothing contained in this Section 3.2(a)(vi) shall be taken to
relieve the Preferred Guarantee Trustee, upon the occurrence of an Event
of Default, of its obligation to exercise the rights and powers vested in
it by this Preferred Securities Guarantee.
(vii) The Preferred Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Preferred Guarantee
Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit.
(viii) The Preferred Guarantee Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or by
or through agents, nominees, custodians or attorneys, and the Preferred
Guarantee Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
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(ix) Any action taken by the Preferred Guarantee Trustee or its
agents hereunder shall bind the Holders of the Preferred Securities, and
the signature of the Preferred Guarantee Trustee or its agents alone shall
be sufficient and effective to perform any such action. No third party
shall be required to inquire as to the authority of the Preferred
Guarantee Trustee to so act or as to its compliance with any of the terms
and provisions of this Preferred Securities Guarantee, both of which shall
be conclusively evidenced by the Preferred Guarantee Trustee's or its
agent's taking such action.
(x) Whenever in the administration of this Preferred Securities
Guarantee the Preferred Guarantee Trustee shall deem it desirable to
receive instructions with respect to enforcing any remedy or right or
taking any other action hereunder, the Preferred Guarantee Trustee (i) may
request instructions from the Holders of a Majority in liquidation amount
of the Preferred Securities, (ii) may refrain from enforcing such remedy
or right or taking such other action until such instructions are received,
and (iii) shall be protected in conclusively relying on or acting in
accordance with such instructions.
(b) No provision of this Preferred Securities Guarantee shall be
deemed to impose any duty or obligation on the Preferred Guarantee Trustee to
perform any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it in any jurisdiction in which it shall be illegal, or
in which the Preferred Guarantee Trustee shall be unqualified or incompetent in
accordance with applicable law, to perform any such act or acts or to exercise
any such right, power, duty or obligation. No permissive power or authority
available to the Preferred Guarantee Trustee shall be construed to be a duty.
SECTION 3.3. Not Responsible for Recitals or Issuance of Guarantee.
The recitals contained in this Guarantee shall be taken as the statements of the
Guarantor, and the Preferred Guarantee Trustee does not assume any
responsibility for their correctness. The Preferred Guarantee Trustee makes no
representation as to the validity or sufficiency of this Preferred Securities
Guarantee.
ARTICLE IV.
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1. Preferred Guarantee Trustee; Eligibility. (a) There
shall at all times be a Preferred Guarantee Trustee which shall:
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(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation or Person permitted by the
Securities and Exchange Commission to act as an institutional trustee
under the Trust Indenture Act, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
50 million U.S. dollars ($50,000,000), and subject to supervision or
examination by Federal, State, Territorial or District of Columbia
authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the supervising or
examining authority referred to above, then, for the purposes of this
Section 4.1(a)(ii), the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published.
(b) If at any time the Preferred Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Preferred Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.2 (c).
(c) If the Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Preferred Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
SECTION 4.2. Appointment, Removal and Resignation of Preferred
Guarantee Trustees. (a) Subject to Section 4.2(b), the Preferred Guarantee
Trustee may be appointed or removed without cause at any time by the Guarantor.
(b) The Preferred Guarantee Trustee shall not be removed in
accordance with Section 4.2(a) until a Successor Preferred Guarantee Trustee has
been appointed and has accepted such appointment by written instrument executed
by such Successor Preferred Guarantee Trustee and delivered to the Guarantor.
(c) The Preferred Guarantee Trustee appointed to office shall hold
office until a Successor Preferred Guarantee Trustee shall have been appointed
or until its removal or resignation. The Preferred Guarantee Trustee may resign
from office (without need for prior or subsequent accounting) by an instrument
in writing executed by the Preferred Guarantee Trustee and delivered to the
Guarantor, which resignation shall not take effect until a Successor Preferred
Guarantee Trustee has been appointed and has accepted such appointment
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by instrument in writing executed by such Successor Preferred Guarantee Trustee
and delivered to the Guarantor and the resigning Preferred Guarantee Trustee.
(d) If no Successor Preferred Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.2 within 60
days after delivery to the Guarantor of an instrument of resignation, the
resigning Preferred Guarantee Trustee may petition any court of competent
jurisdiction for appointment of a Successor Preferred Guarantee Trustee. Such
court may thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Preferred Guarantee Trustee.
(e) No Preferred Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Preferred Guarantee Trustee.
(f) Upon termination of this Preferred Securities Guarantee or
removal or resignation of the Preferred Guarantee Trustee pursuant to this
Section 4.2, the Guarantor shall pay to the Preferred Guarantee Trustee all
amounts accrued to the date of such termination, removal or resignation.
ARTICLE V.
GUARANTEE
SECTION 5.1. Guarantee. The Guarantor irrevocably and
unconditionally agrees to pay in full to the Holders the Guarantee Payments
(without duplication of amounts theretofore paid by the Issuer), as and when
due, regardless of any defense, right of set-off or counterclaim that the Issuer
may have or assert. The Guarantor's obligation to make a Guarantee Payment may
be satisfied by direct payment of the required amounts by the Guarantor to the
Holders or by causing the Issuer to pay such amounts to the Holders.
SECTION 5.2. Waiver of Notice and Demand. The Guarantor hereby
waives notice of acceptance of this Preferred Securities Guarantee and of any
liability to which it applies or may apply, presentment, demand for payment, any
right to require a proceeding first against the Issuer or any other Person
before proceeding against the Guarantor, protest, notice of nonpayment, notice
of dishonor, notice of redemption and all other notices and demands.
SECTION 5.3. Obligations Not Affected. The obligations, covenants,
agreements and duties of the Guarantor under this Preferred Securities Guarantee
shall in no
13
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way be affected or impaired by reason of the happening from time to time of any
of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Preferred
Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or
any portion of the Distributions, Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Preferred
Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Preferred
Securities (other than an extension of time for payment of Distributions,
Redemption Price, Liquidation Distribution or other sum payable that
results from the extension of any interest payment period on the
Debentures or any extension of the maturity date of the Debentures
permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Holders pursuant to the terms of the Preferred
Securities, or any action on the part of the Issuer granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the
Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it
being the intent of this Section 5.3 that the obligations of the Guarantor
hereunder shall be absolute and unconditional under any and all
circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
14
<PAGE>
SECTION 5.4. Rights of Holders. (a) The Holders of a Majority in
liquidation amount of the Preferred Securities have the right to direct the
time, method and place of conducting of any proceeding for any remedy available
to the Preferred Guarantee Trustee in respect of this Preferred Securities
Guarantee or exercising any trust or power conferred upon the Preferred
Guarantee Trustee under this Preferred Securities Guarantee.
(b) If the Preferred Guarantee Trustee fails to enforce this
Preferred Securities Guarantee with respect to the right of any Holders to
receive any Guarantee Payment in accordance herewith, such Holder may directly
institute a proceeding against the Guarantor for enforcement of the Preferred
Security Guarantee for such payment. The Guarantor waives any right or remedy to
require that any action be brought first against the Issuer or any other Person
or entity before proceeding directly against the Guarantor.
SECTION 5.5. Guarantee of Payment. This Preferred Securities
Guarantee creates a guarantee of payment and not of collection.
SECTION 5.6. Subrogation. The Guarantor shall be subrogated to all
(if any) rights of the Holders of Preferred Securities against the Issuer in
respect of any amounts paid to such Holders by the Guarantor under this
Preferred Securities Guarantee; provided, however, that the Guarantor shall not
(except to the extent required by mandatory provisions of law) be entitled to
enforce or exercise any right that it may acquire by way of subrogation or any
indemnity, reimbursement or other agreement, in all cases as a result of payment
under this Preferred Securities Guarantee, if, at the time of any such payment,
any amounts are due and unpaid under this Preferred Securities Guarantee. If any
amount shall be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Holders and to pay
over such amount to the Holders.
SECTION 5.7. Independent Obligations. The Guarantor acknowledges
that its obligations hereunder are independent of the obligations of the Issuer
with respect to the Preferred Securities, and that the Guarantor shall be liable
as principal and as debtor hereunder to make Guarantee Payments pursuant to the
terms of this Preferred Securities Guarantee notwithstanding the occurrence of
any event referred to in subsections (a) through (g), inclusive, of Section 5.3
hereof.
15
<PAGE>
ARTICLE VI.
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1. Limitation of Transactions. So long as any Preferred
Securities remain outstanding, if there shall have occurred and be continuing
an Event of Default or an event of default under the Declaration, then (a)
the Guarantor shall not declare or pay any dividend on, make any
distributions with respect to, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock (other than (i)
purchases or acquisitions of shares of its common stock in connection with
the satisfaction by the Guarantor of its obligations under any employee
benefit plans or the satisfaction by the Guarantor of its obligations
pursuant to any contract or security requiring the Guarantor to purchase
shares of its common stock, (ii) as a result of a reclassification of its
capital stock or the exchange or conversion of one class or series of its
capital stock for another class or series of its capital stock, (iii) the
purchase of fractional interests in shares of its capital stock pursuant to
the conversion or exchange provisions of such capital stock or the security
being converted or exchanged, and (iv) redemptions or purchases pursuant to
the Guarantor's Rights Agreement, dated August 7, 1995, between the Guarantor
and AmSouth Bank of Alabama as Rights Agent), (b) the Guarantor shall not
make any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities (including guarantees) issued by the
Guarantor which rank pari passu with or junior to the Debentures and (c) the
Guarantor shall not make any guarantee payments with respect to the foregoing
(other than pursuant to this Agreement, the Common Securities Guarantee,
dated as of __________, 199_ (the "Common Guarantee") of the Guarantor with
respect to the ___% Trust Originated Common Securities of the Trust, the
Preferred Securities Guarantee Agreement, dated _________, 1997 (the "Trust
III Preferred Guarantee") with respect to the ____% Trust Originated
Preferred Securities of PLC Capital Trust III (the "Trust III TOPrS"), the
Common Securities Guarantee Agreement, dated ___________, 1997 (the "Trust III
Common Guarantee") with respect to the __% Trust Originated Common Securities
of PLC Capital Trust III (the "Trust III Common Securities"), the Preferred
Securities Guarantee Agreement dated as of ________, 1997 (the "Trust II
Preferred Guarantee") with respect to the __% Trust Originated Preferred
Securities of PLC Capital Trust II (the "Trust II TOPrS"), the Common
Securities Guarantee Agreement dated as of ________, 1997 (the "Trust II
Common Guarantee") with respect to the __% Trust Originated Common Securities
of PLC Capital Trust II (the "Trust II Common Securities"), the Preferred
Securities Guarantee Agreement, dated April 29, 1997 of the Guarantor with
respect to the 8 1/4% Trust Originated Preferred Securities of PLC Capital
Trust I, the Common Securities Guarantee Agreement, dated as of April 29,
1997 of the Guarantor with respect to the 8 1/4% Trust Originated Common
Securities of PLC Capital Trust I and the Guarantee Agreement, dated as of
June 9, 1994 of the Guarantor with respect to the 9% Cumulative Monthly
Income Preferred Securities, Series A of PLC Capital L.L.C.).
SECTION 6.2. Ranking. This Preferred Securities Guarantee will
constitute an unsecured obligation of the Guarantor and will rank (i)
subordinate and junior in right of payment to all present and future Senior
Indebtedness (as such term is defined in the Indenture), (ii) pari passu with
the Common Guarantee, the Debentures, the Guarantor's Guarantee of PLC Capital
L.L.C.'s 9% Cumulative Monthly Income Preferred Securities, Series A, having
an aggregate liquidation amount of $55 million, the Company's 9% Subordinated
Debentures, due 2024, Series A, having an aggregate liquidation amount of
69.6 million, the Trust III Preferred Guarantee with respect to the Trust III
TOPrS having an aggregate liquidation amount of $______ million, the Trust
III Common Guarantee with respect to the Trust III Common Securities, having
an aggregate liquidation amount of $___ million, the Company's __%
Subordinated Debentures due ________, Series ____, having an aggregate
liquidation amount of $___ million, the Trust II Preferred Guarantee with
respect to the Trust II TOPrS, having an aggregate liquidation amount of
$_____ million, the Trust II Common Guarantee with respect to the Trust II
Common Securities, having an aggregate liquidation amount of $___ million,
the Company's ______% Subordinated Debentures due ___________, Series __,
having an aggregate liquidation amount of $___ million, the Company's
Guarantee of PLC Capital Trust I's 8 1/4% Trust Originated Preferred
Securities, having an aggregate liquidation amount of $75 million, the
Company's Guarantee of PLC Capital Trust I's 8 1/4% Trust Originated Common
Securities, having an aggregate liquidation amount of $23 million and the
Company's 8 1/4% Subordinated Debentures due 2027, Series B, having an
aggregate liquidation amount of $77.3 million and any other liabilities or
obligations that may be pari passu by their terms and (iii) senior to the
Guarantor's common stock, the most senior preferred or preference stock now
or hereafter issued by the Guarantor
16
<PAGE>
and with any guarantee now or hereafter entered into by the Guarantor in respect
of any preferred or preference stock of any affiliate of the Guarantor.
ARTICLE VII.
TERMINATION
SECTION 7.1. Termination. This Preferred Securities Guarantee shall
terminate upon (i) full payment of the Redemption Price of all Preferred
Securities, (ii) upon the distribution of the Debentures to the Holders of all
of the Preferred Securities or (iii) upon full payment of the amounts payable in
accordance with the Declaration upon liquidation of the Issuer. Notwithstanding
the foregoing, this Preferred Securities Guarantee will continue to be effective
or will be reinstated, as the case may be, if at any time any Holder of
Preferred Securities must restore payment of any sums paid under the Preferred
Securities or under this Preferred Securities Guarantee.
ARTICLE VIII.
INDEMNIFICATION
SECTION 8.1. Exculpation. (a) No Indemnified Person shall be liable,
responsible or accountable in damages or otherwise to the Guarantor or any
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 in
accordance with this Preferred Securities Guarantee and in a manner that such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Preferred Securities Guarantee or
by law, except that an Indemnified Person shall be liable for any such loss,
damage or claim incurred by reason of such Indemnified Person's negligence or
willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor 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 Guarantor, 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 Holders of Preferred Securities
might properly be paid.
17
<PAGE>
SECTION 8.2. Indemnification. (a) To the fullest extent permitted by
applicable law, the Guarantor shall indemnify and hold harmless each Indemnified
Person from and against 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 in accordance with this Guarantee Agreement and in a manner
such Indemnified Person reasonably believed to be within the scope of authority
conferred on such Indemnified Person by this Guarantee 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 negligence or
willful misconduct with respect to such acts or omissions.
(b) To the fullest extent permitted by applicable law, reasonable
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 Guarantor prior to the final disposition of such claim, demand,
action, suit or proceeding upon receipt by the Guarantor 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 8.2(a).
(c) The obligation to indemnify as set forth in this Section 8.2
shall survive the termination of the Preferred Securities Guarantee.
ARTICLE IX.
MISCELLANEOUS
SECTION 9.1. Successors and Assigns. All guarantees and agreements
contained in this Preferred Securities Guarantee shall bind the successors,
assigns, receivers, trustees and representatives of the Guarantor and shall
inure to the benefit of the Holders of the Preferred Securities then
outstanding.
SECTION 9.2. Amendments. Except with respect to any changes that do
not adversely affect the rights of Holders (in which case no consent of Holders
will be required), this Preferred Securities Guarantee may only be amended with
the prior approval of the Holders of at least a Majority in liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of all the outstanding Preferred Securities.
The provisions of Section 12.2 of the Declaration with respect to meetings of
Holders of the Securities apply to the giving of such approval.
18
<PAGE>
SECTION 9.3. Notices. All notices provided for in this Preferred
Securities Guarantee shall be in writing, duly signed by the party giving such
notice, and shall be delivered, telecopied or mailed by registered or certified
mail, as follows:
(a) if given to the Preferred Guarantee Trustee, at the Preferred
Guarantee Trustee's mailing address set forth below (or such other address
as the Preferred Guarantee Trustee may give notice of to the Holders of
the Preferred Securities):
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
(b) If given to the Guarantor, at the Guarantor's mailing address
set forth below (or such other address as the Guarantor may give notice of to
the Holders of the Preferred Securities):
Protective Life Corporation
2801 Highway 280 South
Birmingham, Alabama 35223
Attention: Secretary
(c) If given to any Holder of Preferred Securities, at the address
set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 9.4. Benefit. This Preferred Securities Guarantee is solely
for the benefit of the Holders of the Preferred Securities and, subject to
Section 3.1(a), is not separately transferable from the Preferred Securities.
SECTION 9.5. Governing Law. THIS PREFERRED SECURITIES GUARANTEE
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK.
19
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THIS PREFERRED SECURITIES GUARANTEE is executed as of the day and
year first above written.
PROTECTIVE LIFE CORPORATION, as Guarantor
By:
--------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY, as Preferred
Guarantee Trustee
By:
--------------------------------------
Name:
Title:
20
<PAGE>
EXHIBIT 4(aa)
PLC CAPITAL TRUST II
CERTIFICATE OF TRUST
The undersigned, the trustees of PLC Capital Trust II, desiring to
form a business trust pursuant to Delaware Business Trust Act, 12 Del. C.
Section 3810, hereby certify as follows:
(a) The name of the business trust being formed hereby (the "Trust")
is "PLC Capital Trust II".
(b) The name and business address of the trustee of the Trust which
has its principal place of business in the State of Delaware is as
follows:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration
(c) This Certificate of Trust shall be effective as of the date of
filing.
Dated: July 1, 1997
/s/ Richard J. Bielen
-------------------------------------
Richard J. Bielen, as Trustee
/s/ Jerry W. DeFoor
-------------------------------------
Jerry W. DeFoor, as Trustee
WILMINGTON TRUST COMPANY, as Trustee
By: /s/ Debra Eberly
------------------------------------
Name: Debra Eberly
Title: Administrative Account Manager
<PAGE>
EXHIBIT 4(bb)
PLC CAPITAL TRUST III
CERTIFICATE OF TRUST
The undersigned, the trustees of PLC Capital Trust III, desiring to
form a business trust pursuant to Delaware Business Trust Act, 12 Del. C.
Section 3810, hereby certify as follows:
(a) The name of the business trust being formed hereby (the "Trust")
is "PLC Capital Trust III".
(b) The name and business address of the trustee of the Trust which
has its principal place of business in the State of Delaware is as
follows:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration
(c) This Certificate of Trust shall be effective as of the date of
filing.
Dated: July 1, 1997
/s/ Richard J. Bielen
-------------------------------------
Richard J. Bielen, as Trustee
/s/ Jerry W. DeFoor
-------------------------------------
Jerry W. DeFoor, as Trustee
WILMINGTON TRUST COMPANY, as Trustee
By: /s/ Debra Eberly
----------------------------------
Name: Debra Eberly
Title: Administrative Account Manager
<PAGE>
EXHIBIT 4(cc)
PLC CAPITAL TRUST IV
CERTIFICATE OF TRUST
The undersigned, the trustees of PLC Capital Trust IV, desiring to
form a business trust pursuant to Delaware Business Trust Act, 12 Del. C.
Section 3810, hereby certify as follows:
(a) The name of the business trust being formed hereby (the "Trust")
is "PLC Capital Trust IV".
(b) The name and business address of the trustee of the Trust which
has its principal place of business in the State of Delaware is as
follows:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration
(c) This Certificate of Trust shall be effective as of the date of
filing.
Dated: July 1, 1997
/s/ Richard J. Bielen
-------------------------------------
Richard J. Bielen, as Trustee
/s/ Jerry W. DeFoor
-------------------------------------
Jerry W. DeFoor, as Trustee
WILMINGTON TRUST COMPANY, as Trustee
By: /s/ Debra Eberly
----------------------------------
Name: Debra Eberly
Title: Administrative Account Manager
<PAGE>
EXHIBIT 4(dd)
DECLARATION OF TRUST
OF
PLC CAPITAL TRUST II
Dated as of July 1, 1997
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I.
DEFINITIONS
SECTION 1.1. Definitions..............................................1
ARTICLE II.
ORGANIZATION
SECTION 2.1. Name.....................................................4
SECTION 2.2. Office...................................................4
SECTION 2.3. Purpose..................................................4
SECTION 2.4. Authority................................................4
SECTION 2.5. Title to Property of the Trust...........................4
SECTION 2.6. Powers of the Trustees...................................5
SECTION 2.7. Filing of Certificate of Trust...........................6
SECTION 2.8. Duration of Trust........................................6
SECTION 2.9. Responsibilities of the Sponsor..........................6
SECTION 2.10. Declaration Binding on Securities Holders...............7
ARTICLE III.
TRUSTEES
SECTION 3.1. Trustees.................................................7
SECTION 3.2. Regular Trustees.........................................7
SECTION 3.3. Delaware Trustee.........................................8
SECTION 3.4. Institutional Trustee....................................8
SECTION 3.5. Not Responsible for Recitals or Sufficiency of
Declaration .............................................8
ARTICLE IV.
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1. Exculpation..............................................9
SECTION 4.2. Fiduciary Duty...........................................9
SECTION 4.3. Indemnification.........................................10
i
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Page
----
SECTION 4.4. Outside Businesses......................................13
ARTICLE V.
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1. Amendments..............................................13
SECTION 5.2. Termination of Trust....................................14
SECTION 5.3. Governing Law...........................................14
SECTION 5.4. Headings................................................14
SECTION 5.5. Successors and Assigns..................................14
SECTION 5.6. Partial Enforceability..................................14
SECTION 5.7. Counterparts............................................15
ii
<PAGE>
DECLARATION OF TRUST
OF
PLC CAPITAL TRUST II
July 1, 1997
DECLARATION OF TRUST ("Declaration") dated and effective as of July
1, 1997 by the undersigned Trustees (together with all other persons from time
to time duly appointed and serving as trustees in accordance with the provisions
of this Declaration, the "Trustees"), Protective Life Corporation, a Delaware
corporation, as trust sponsor (the "Sponsor"), and by the holders, from time to
time, of undivided beneficial interests in the assets of the Trust to be issued
pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor desire to establish a trust
(the "Trust") pursuant to the Delaware Business Trust Act for the sole purpose
of issuing and selling certain securities representing undivided beneficial
interests in the assets of the Trust and investing the proceeds thereof in
certain Debentures of the Debenture Issuer (each as hereinafter defined); and
NOW, THEREFORE, it being the intention of the parties hereto that
the Trust constitute a business trust under the Business Trust Act and that this
Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I.
DEFINITIONS
SECTION 1.1. Definitions. Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in
the preamble above have the respective meanings assigned to them in this
Section 1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
<PAGE>
(c) all references to "the Declaration" or "this Declaration" are to
this Declaration of Trust as modified, supplemented or amended from time
to time;
(d) all references in this Declaration to Articles and Sections are
to Articles and Sections of this Declaration unless otherwise specified;
and
(e) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405
of the Securities Act or any successor rule thereunder.
"Business Day" means any day other than a day on which banking
institutions in New York, New York are authorized or required by law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code Section 3801 et seq., as it may be amended from time to time,
or any successor legislation.
"Commission" means the Securities and Exchange Commission.
"Common Security" means a security representing a common undivided
beneficial interest in the assets of the Trust with such terms as may be set out
in any amendment to this Declaration.
"Company Indemnified Person" means (a) any Regular Trustee; (b) any
Affiliate of any Regular Trustee; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Regular Trustee;
or (d) any employee or agent of the Trust or its Affiliates.
"Covered Person" means (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates and (b) any holder of Securities.
"Debenture Issuer" means Protective Life Corporation in its capacity
as the issuer of the Debentures under the Indenture.
"Debentures" means the series of Debentures to be issued by the
Debenture Issuer and acquired by the Trust.
2
<PAGE>
"Debenture Trustee" means AmSouth Bank (as successor by merger to
AmSouth Bank of Alabama, Successor by conversion of charter to AmSouth Bank
N.A.), as trustee under the Indenture until a successor is appointed thereunder,
and thereafter means such successor trustee.
"Delaware Trustee" has the meaning set forth in Section 3.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in Section
4.3 (b).
"Holder" means the person in whose name a certificate representing a
Security is registered.
"Indemnified Person" means a Company Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the subordinated indenture, dated as of June 1,
1994, from Protective Life Corporation to the Debenture Trustee, as trustee and
any indenture supplemental thereto pursuant to which the Debentures are to be
issued.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Security" means a security representing a preferred
undivided beneficial interest in the assets of the Trust with such terms as may
be set out in any amendment to this Declaration.
"Regular Trustee" has the meaning set forth in Section 3.1.
"Securities" means the Common Securities and the Preferred
Securities.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, or any successor legislation.
"Sponsor" means Protective Life Corporation in its capacity as
sponsor of the Trust.
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"Trustee" or "Trustees" means each Person who has signed this
Declaration as a Trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as Trustees hereunder.
ARTICLE II.
ORGANIZATION
SECTION 2.1. Name. The Trust created by this Declaration is named
"PLC Capital Trust II." The Trust's activities may be conducted under the name
of the Trust or any other name deemed advisable by the Regular Trustees.
SECTION 2.2. Office. The address of the principal office of the
Trust is c/o Protective Life Corporation, 2801 Highway 280 South, Birmingham,
Alabama 35223. At any time, the Regular Trustees may designate another principal
office.
SECTION 2.3. Purpose. The exclusive purposes and functions of the
Trust are (i) issuing the Securities representing undivided beneficial interests
in the assets of the Trust, (ii) investing the gross proceeds of the Securities
in the Debentures and (iii) engaging in only those other activities necessary or
incidental thereto. The Trust shall not borrow money, issue debt or reinvest
proceeds derived from investments, pledge any of its assets, or otherwise
undertake (or permit to be undertaken) any activity that would cause the Trust
not to be classified for United States federal income tax purposes as a grantor
trust.
SECTION 2.4. Authority. Subject to the limitations provided in this
Declaration, the Regular Trustees shall have exclusive and complete authority to
carry out the purposes of the Trust. An action taken by the Regular Trustees in
accordance with their powers shall constitute the act of and serve to bind the
Trust. In dealing with the Regular Trustees acting on behalf of the Trust, no
person shall be required to inquire into the authority of the Regular Trustees
to bind the Trust. Persons dealing with the Trust are entitled to rely
conclusively on the power and authority of the Regular Trustees as set forth in
this Declaration.
SECTION 2.5. Title to Property of the Trust. Legal title to all
assets of the Trust shall be vested in the Trust.
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SECTION 2.6. Powers of the Trustees. The Regular Trustees shall have
the exclusive power and authority to cause the Trust to engage in the following
activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that
the Trust may issue no more than one series of Preferred Securities and no
more than one series of Common Securities, and, provided further, that
there shall be no interests in the Trust other than the Securities and the
issuance of the Securities shall be limited to a one-time, simultaneous
issuance of both Preferred Securities and Common Securities;
(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission a registration
statement on Form S-3 prepared by the Sponsor, including any
amendments thereto, in relation to the Preferred Securities;
(ii) execute and file any documents prepared by the Sponsor,
or take any acts as determined by the Sponsor to be necessary in
order to qualify or register all or part of the Preferred Securities
in any State in which the Sponsor has determined to qualify or
register such Preferred Securities for sale;
(iii) execute and file an application, prepared by the
Sponsor, to the New York Stock Exchange or any other national stock
exchange or the Nasdaq Stock Market's National Market for listing
upon notice of issuance of any Preferred Securities;
(iv) execute and file with the Commission a registration
statement on Form 8-A, including any amendments thereto, prepared by
the Sponsor relating to the registration of the Preferred Securities
under Section 12(b) of the Exchange Act; and
(v) execute and enter into an underwriting or purchase
agreement and pricing agreement providing for the sale of the
Preferred Securities;
(c) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors,
and consultants and provide for reasonable compensation for such services;
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(d) to incur expenses which are necessary or incidental to carry out
any of the purposes of this Declaration; and
(e) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing.
SECTION 2.7. Filing of Certificate of Trust. On or after the date of
execution of this Declaration, the Trustees shall cause the filing of the
Certificate of Trust for the Trust in the form attached hereto as Exhibit A with
the Secretary of State of the State of Delaware.
SECTION 2.8. Duration of Trust. The Trust, absent termination
pursuant to the provisions of Section 5.2, shall have existence for fifty-five
(55) years from the date hereof.
SECTION 2.9. Responsibilities of the Sponsor. In connection with the
issue and sale of the Preferred Securities, the Sponsor shall have the exclusive
right and responsibility to engage in the following activities:
(a) to prepare for filing by the Trust with the Commission a
registration statement on Form S-3 in relation to the Preferred
Securities, including any amendments thereto;
(b) to determine the States in which to take appropriate action to
qualify or register for sale all or part of the Preferred Securities and
to do any and all such acts, other than actions which must be taken by the
Trust, and advise the Trust of actions it must take, and prepare for
execution and filing any documents to be executed and filed by the Trust,
as the Sponsor deems necessary or advisable in order to comply with the
applicable laws of any such States;
(c) to prepare for filing by the Trust an application to the New
York Stock Exchange or any other national stock exchange or the Nasdaq
National Market for listing upon notice of issuance of any Preferred
Securities;
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the
class of Preferred Securities under Section 12(b) of the Exchange Act,
including any amendments thereto; and
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(e) to negotiate the terms of an underwriting or purchase agreement
and pricing agreement providing for the sale of the Preferred Securities.
SECTION 2.10. Declaration Binding on Securities Holders. Every
Person by virtue of having become a Holder of a Security or any interest therein
in accordance with the terms of this Declaration, shall be deemed to have
expressly assented and agreed to the terms of, and shall be bound by, this
Declaration.
ARTICLE III.
TRUSTEES
SECTION 3.1. Trustees. The number of Trustees initially shall be
three (3), and thereafter the number of Trustees shall be such number as shall
be fixed from time to time by a written instrument signed by the Sponsor. The
Sponsor is entitled to appoint or remove without cause any Trustee at any time;
provided, however, that the number of Trustees shall in no event be less than
two (2); provided further that one Trustee, in the case of a natural person,
shall be a person who is a resident of the State of Delaware or that, if not a
natural person, is an entity which has its principal place of business in the
State of Delaware (the "Delaware Trustee"); provided further that there shall be
at least one Trustee who is an employee or officer of, or is affiliated with,
the Sponsor (a "Regular Trustee").
SECTION 3.2. Regular Trustees. The initial Regular Trustees shall
be:
Richard J. Bielen
c/o Protective Life Corporation
2801 Highway 280 South
Birmingham, Alabama 35223
Jerry W. DeFoor
c/o Protective Life Corporation
2801 Highway 280 South
Birmingham, Alabama 35223
(a) Except as expressly set forth in this Declaration, any power of
the Regular Trustees may be exercised by, or with the consent of, any one such
Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees, and except
as otherwise required by the Business Trust Act, any Regular Trustee is
authorized to execute on
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behalf of the Trust any documents which the Regular Trustees have the power and
authority to cause the Trust to execute pursuant to Section 2.6, provided that,
the registration statement referred to in Section 2.6(b)(i), including any
amendments thereto, shall be signed by a majority of the Regular Trustees; and
(c) a Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purposes of signing any documents which the Regular Trustees
have power and authority to cause the Trust to execute pursuant to Section 2.6.
SECTION 3.3. Delaware Trustee. The initial Delaware Trustee shall
be:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration
Notwithstanding any other provision of this Declaration, the
Delaware Trustee shall not be entitled to exercise any of the powers of, nor
shall the Delaware Trustee have any of the duties and responsibilities of the
Regular Trustees described in this Declaration. The Delaware Trustee shall be a
Trustee for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Business Trust Act. Notwithstanding anything herein to the
contrary, the Delaware Trustee shall not be liable for the acts or omissions to
act of the Trust, of the Sponsor or of the Regular Trustees except such acts as
the Delaware Trustee is expressly obligated or authorized to undertake under
this Declaration or the Business Trust Act and except for the gross negligence
or willful misconduct of the Delaware Trustee.
SECTION 3.4. Institutional Trustee. Prior to the issuance of the
Preferred Securities and Common Securities, the Sponsor shall appoint a trustee
(the "Institutional Trustee") meeting the requirements of an eligible trustee
under the Trust Indenture Act of 1939, as amended, by the execution of an
amendment to this Declaration executed by the Regular Trustees, the Sponsor, the
Institutional Trustee and the Delaware Trustee.
SECTION 3.5. Not Responsible for Recitals or Sufficiency of
Declaration. The recitals contained in this Declaration shall be taken as the
statements of the Sponsor, and the Trustees do not assume any responsibility for
their correctness. The Trustees make no representations as to the value or
condition of the property of the Trust or any part thereof. The Trustees make no
representations as to the validity or sufficiency of this Declaration.
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ARTICLE IV.
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1. Exculpation. (a) No Indemnified Person shall be liable,
responsible or accountable in damages or otherwise to the Trust or any 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
Trust and in a manner such Indemnified Person reasonably believed to be within
the scope of the authority conferred on such Indemnified Person by this
Declaration or by law, except that an Indemnified Person shall be liable for any
such loss, damage or claim incurred by reason of such Indemnified Person's gross
negligence or willful misconduct with respect to such acts or omissions; and
(b) an Indemnified Person shall be fully protected in relying in
good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust 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 Trust, 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 holders of Securities might properly be paid.
SECTION 4.2. Fiduciary Duty. (a) To the extent that, at law or in
equity, an Indemnified Person has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to any other Covered Person, an
Indemnified Person acting under this Declaration shall not be liable to the
Trust or to any other Covered Person for its good faith reliance on the
provisions of this Declaration. The provisions of this Declaration, to the
extent that they restrict the duties and liabilities of an Indemnified Person
otherwise existing at law or in equity, are agreed by the parties hereto to
replace such other duties and liabilities of such Indemnified Person;
(b) unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between
Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person
shall act in a manner that
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is, or provides terms that are, fair and reasonable to the Trust or
any holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise; and
(c) whenever in this Declaration an Indemnified Person is permitted
or required to make a decision:
(i) in its "discretion" or under a grant of similar authority, the
Indemnified Person shall be entitled to consider 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 Trust 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 Declaration or
by applicable law.
SECTION 4.3. Indemnification. (a) (i) The Debenture Issuer shall
indemnify, to the full extent permitted by law, any Company Indemnified 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 the
Trust) by reason of the fact that he is or was a Company Indemnified Person
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him 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 the Trust,
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the Company Indemnified Person did not act in good faith and in a manner which
he reasonably believed to be in or not opposed to the best interests of the
Trust, and, with respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
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(ii) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Trust to procure a judgment in its favor by
reason of the fact that he is or was a Company Indemnified Person against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Trust and except that no such indemnification shall be
made in respect of any claim, issue or matter as to which such Company
Indemnified Person shall have been adjudged to be liable to the Trust unless and
only to the extent that the Court of Chancery of Delaware or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which such Court of Chancery or such other court shall deem proper.
(iii) To the extent that a Company Indemnified Person shall be
successful on the merits or otherwise (including dismissal of an action without
prejudice or the settlement of an action without admission of liability) in
defense of any action, suit or proceeding referred to in paragraphs (i) and (ii)
of this Section 4.3(a), or in defense of any claim, issue or matter therein, he
shall be indemnified, to the full extent permitted by law, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of this
Section 4.3(a) (unless ordered by a court) shall be made by the Debenture Issuer
only as authorized in the specific case upon a determination that
indemnification of the Company Indemnified Person is proper in the circumstances
because he has met the applicable standard of conduct set forth in paragraphs
(i) and (ii). Such determination shall be made (1) by the Regular Trustees by a
majority vote of a quorum consisting of such Regular Trustees who were not
parties to such action, suit or proceeding, (2) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of disinterested Regular
Trustees so directs, by independent legal counsel in a written opinion, or (3)
by the Common Security Holder of the Trust.
(v) Expenses (including attorneys' fees) incurred by a Company
Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in paragraphs (i) and (ii)
of this Section 4.3(a) shall be paid by the Debenture Issuer in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such Company Indemnified Person to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Debenture Issuer as authorized in this Section 4.3(a).
Notwithstanding the foregoing, no advance shall be made by the Debenture Issuer
if a determination is reasonably and promptly made (i) by the Regular
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Trustees by a majority vote of a quorum of disinterested Regular Trustees, (ii)
if such a quorum is not obtainable, or, even if obtainable, if a quorum of
disinterested Regular Trustees so directs, by independent legal counsel in a
written opinion or (iii) the Common Security Holder of the Trust, that, based
upon the facts known to the Regular Trustees, counsel or the Common Security
Holder at the time such determination is made, such Company Indemnified Person
acted in bad faith or in a manner that such person did not believe to be in or
not opposed to the best interests of the Trust, or, with respect to any criminal
proceeding, that such Company Indemnified Person believed or had reasonable
cause to believe his conduct was unlawful. In no event shall any advance be made
in instances where the Regular Trustees, independent legal counsel or Common
Security Holder reasonably determine that such person deliberately breached his
duty to the Trust or its Common or Preferred Security Holders.
(vi) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other paragraphs of this Section 4.3(a) shall not be
deemed exclusive of any other rights to which those seeking indemnification and
advancement of expenses may be entitled under any agreement, vote of
stockholders or disinterested directors of the Debenture Issuer or Preferred
Security Holders of the Trust or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office. All
rights to indemnification under this Section 4.3(a) shall be deemed to be
provided by a contract between the Debenture Issuer and each Company Indemnified
Person who serves in such capacity at any time while this Section 4.3(a) is in
effect. Any repeal or modification of this Section 4.3(a) shall not affect any
rights or obligations then existing.
(vii) The Debenture Issuer or the Trust may purchase and maintain
insurance on behalf of any person who is or was a Company Indemnified Person
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Debenture
Issuer would have the power to indemnify him against such liability under the
provisions of this Section 4.3 (a).
(viii) For purposes of this Section 4.3(a), references to "the
Trust" shall include, in addition to the resulting or surviving entity, any
constituent entity (including any constituent of a constituent) absorbed in a
consolidation or merger, so that any person who is or was a director, trustee,
officer or employee of such constituent entity, or is or was serving at the
request of such constituent entity as a director, trustee, officer, employee or
agent of another entity, shall stand in the same position under the provisions
of this Section 4.3(a) with respect to the resulting or surviving entity as he
would have with respect to such constituent entity if its separate existence had
continued.
(ix) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section 4.3(a) shall, unless otherwise provided when
authorized or ratified,
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continue as to a person who has ceased to be a Company Indemnified Person and
shall inure to the benefit of the heirs, executors and administrators of such a
person.
(b) The Debenture Issuer agrees to indemnify (i) the Delaware
Trustee, (ii) any Affiliate of the Delaware Trustee, and (iii) any officers,
directors, shareholders, members, partners, employees, representatives,
nominees, custodians or agents of the Delaware Trustee (each of the Persons in
(i) through (iii) being referred to as a "Fiduciary Indemnified Person") for,
and to hold each Fiduciary Indemnified Person harmless against, any loss,
liability or expense incurred without gross negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against, or
investigating, any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in this Section 4.3(b) shall survive the termination of
this Declaration.
SECTION 4.4. Outside Businesses. Any Covered Person, the Sponsor and
the Delaware Trustee may engage in or possess an interest in other business
ventures of any nature or description, independently or with others, similar or
dissimilar to the business of the Trust, and the Trust and the Holders shall
have no rights by virtue of this Declaration in and to such independent ventures
or the income or profits derived therefrom and the pursuit of any such venture,
even if competitive with the business of the Trust, shall not be deemed wrongful
or improper. Neither any Covered Person, the Sponsor nor the Delaware Trustee
shall be obligated to present any particular investment or other opportunity to
the Trust even if such opportunity is of a character that, if presented to the
Trust, could be taken by the Trust, and any Covered Person, the Sponsor and the
Delaware Trustee shall have the right to take for its own account (individually
or as a partner or fiduciary) or to recommend to others any such particular
investment or other opportunity. Any Covered Person and the Delaware Trustee may
engage or be interested in any financial or other transaction with the Sponsor
or any Affiliate of the Sponsor, or may act as depositary for, trustee or agent
for or may act on any committee or body of holders of, securities or other
obligations of the Sponsor or its Affiliates.
ARTICLE V.
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1. Amendments. At any time before the issue of any
Securities, this Declaration may be amended by, and only by, a written
instrument executed by all of the Regular Trustees and the Sponsor; provided,
however, if the amendment affects the rights,
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powers, duties, obligations or immunities of the Delaware Trustee, the amendment
shall also be approved by the Delaware Trustee.
SECTION 5.2. Termination of Trust. (a) The Trust shall terminate and
be of no further force or effect:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor or the revocation of the Sponsor's
charter or of the Trust's certificate of trust;
(iii) upon the entry of a decree of judicial dissolution of the
Sponsor, or the Trust; and
(iv) before the issue of any Securities, with the consent of all of
the Regular Trustees and the Sponsor; and
(b) as soon as is practicable after the occurrence of an event
referred to in Section 5.2(a), the Trustees shall file a certificate of
cancellation with the Secretary of State of the State of Delaware.
SECTION 5.3. Governing Law. This Declaration and the rights of the
parties hereunder shall be governed by and interpreted in accordance with the
laws of the State of Delaware and all rights and remedies shall be governed by
such laws without regard to principles of conflict of laws.
SECTION 5.4. Headings. Headings contained in this Declaration are
inserted for convenience of reference only and do not affect the interpretation
of this Declaration or any provision hereof.
SECTION 5.5. Successors and Assigns. Whenever in this Declaration
any of the parties hereto is named or referred to, the successors and assigns of
such party shall be deemed to be included, and all covenants and agreements in
this Declaration by the Sponsor and the Trustees shall bind and inure to the
benefit of their respective successors and assigns, whether so expressed.
SECTION 5.6. Partial Enforceability. If any provision of this
Declaration, or the application of such provision to any Person or circumstance,
shall be held invalid, the
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remainder of this Declaration, or the application of such provision to persons
or circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 5.7. Counterparts. This Declaration may contain more than
one counterpart of the signature page and this Declaration may be executed by
the affixing of the signature of each of the Trustees to one of such counterpart
signature pages. All of such counterpart signature pages shall be read as though
one, and they shall have the same force and effect as though all of the signers
had signed a single signature page.
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IN WITNESS WHEREOF, the undersigned has caused this Declaration of
Trust of PLC Capital Trust II to be executed as of the day and year first above
written.
/s/ Richard J. Bielen
------------------------------
Name: Richard J. Bielen
Title: Regular Trustee
/s/ Jerry W. DeFoor
------------------------------
Name: Jerry W. DeFoor
Title: Regular Trustee
WILMINGTON TRUST COMPANY,
as Delaware Trustee
/s/ Debra Eberly
------------------------------
Name: Debra Eberly
Title: Administrative Account Manager
PROTECTIVE LIFE CORPORATION, as
Sponsor
/s/ Richard J. Bielen
------------------------------
Name: Richard J. Bielen
Title: Senior Vice President, Investments
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
The undersigned, the trustees of PLC Capital Trust II, desiring to
form a business trust pursuant to Delaware Business Trust Act, 12 Del. C.
Section 3810, hereby certify as follows:
(a) The name of the business trust being formed hereby (the "Trust")
is "PLC Capital Trust II".
(b) The name and business address of the trustee of the Trust which
has its principal place of business in the State of Delaware is as
follows:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration
(c) This Certificate of Trust shall be effective as of the date of
filing.
Dated: July 1, 1997
------------------------------------
Richard J. Bielen, as Trustee
------------------------------------
Jerry W. DeFoor, as Trustee
WILMINGTON TRUST COMPANY, as Trustee
By:
------------------------------------
Name:
Title:
<PAGE>
EXHIBIT 4(ee)
DECLARATION OF TRUST
PLC CAPITAL TRUST III
Dated as of July 1, 1997
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I.
DEFINITIONS
SECTION 1.1. Definitions..............................................1
ARTICLE II.
ORGANIZATION
SECTION 2.1. Name.....................................................4
SECTION 2.2. Office...................................................4
SECTION 2.3. Purpose..................................................4
SECTION 2.4. Authority................................................4
SECTION 2.5. Title to Property of the Trust...........................4
SECTION 2.6. Powers of the Trustees...................................5
SECTION 2.7. Filing of Certificate of Trust...........................6
SECTION 2.8. Duration of Trust........................................6
SECTION 2.9. Responsibilities of the Sponsor..........................6
SECTION 2.10. Declaration Binding on Securities Holders...............7
ARTICLE III.
TRUSTEES
SECTION 3.1. Trustees.................................................7
SECTION 3.2. Regular Trustees.........................................7
SECTION 3.3. Delaware Trustee.........................................8
SECTION 3.4. Institutional Trustee....................................8
SECTION 3.5. Not Responsible for Recitals or Sufficiency of
Declaration .............................................8
ARTICLE IV.
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1. Exculpation..............................................9
SECTION 4.2. Fiduciary Duty...........................................9
SECTION 4.3. Indemnification.........................................10
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Page
----
SECTION 4.4. Outside Businesses......................................13
ARTICLE V.
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1. Amendments..............................................13
SECTION 5.2. Termination of Trust....................................14
SECTION 5.3. Governing Law...........................................14
SECTION 5.4. Headings................................................14
SECTION 5.5. Successors and Assigns..................................14
SECTION 5.6. Partial Enforceability..................................14
SECTION 5.7. Counterparts............................................15
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DECLARATION OF TRUST
OF
PLC CAPITAL TRUST III
July 1, 1997
DECLARATION OF TRUST ("Declaration") dated and effective as of July
1, 1997 by the undersigned Trustees (together with all other persons from time
to time duly appointed and serving as trustees in accordance with the provisions
of this Declaration, the "Trustees"), Protective Life Corporation, a Delaware
corporation, as trust sponsor (the "Sponsor"), and by the holders, from time to
time, of undivided beneficial interests in the assets of the Trust to be issued
pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor desire to establish a trust
(the "Trust") pursuant to the Delaware Business Trust Act for the sole purpose
of issuing and selling certain securities representing undivided beneficial
interests in the assets of the Trust and investing the proceeds thereof in
certain Debentures of the Debenture Issuer (each as hereinafter defined); and
NOW, THEREFORE, it being the intention of the parties hereto that
the Trust constitute a business trust under the Business Trust Act and that this
Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I.
DEFINITIONS
SECTION 1.1. Definitions. Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in
the preamble above have the respective meanings assigned to them in this
Section 1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
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(c) all references to "the Declaration" or "this Declaration" are to
this Declaration of Trust as modified, supplemented or amended from time
to time;
(d) all references in this Declaration to Articles and Sections are
to Articles and Sections of this Declaration unless otherwise specified;
and
(e) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405
of the Securities Act or any successor rule thereunder.
"Business Day" means any day other than a day on which banking
institutions in New York, New York are authorized or required by law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code Section 3801 et seq., as it may be amended from time to time,
or any successor legislation.
"Commission" means the Securities and Exchange Commission.
"Common Security" means a security representing a common undivided
beneficial interest in the assets of the Trust with such terms as may be set out
in any amendment to this Declaration.
"Company Indemnified Person" means (a) any Regular Trustee; (b) any
Affiliate of any Regular Trustee; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Regular Trustee;
or (d) any employee or agent of the Trust or its Affiliates.
"Covered Person" means (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates and (b) any holder of Securities.
"Debenture Issuer" means Protective Life Corporation in its capacity
as the issuer of the Debentures under the Indenture.
"Debentures" means the series of Debentures to be issued by the
Debenture Issuer and acquired by the Trust.
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"Debenture Trustee" means AmSouth Bank (as successor by merger to
AmSouth Bank of Alabama, successor by conversion of charter to AmSouth Bank
N.A.), as trustee under the Indenture until a successor is appointed thereunder,
and thereafter means such successor trustee.
"Delaware Trustee" has the meaning set forth in Section 3.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in Section
4.3 (b).
"Holder" means the person in whose name a certificate representing a
Security is registered.
"Indemnified Person" means a Company Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the subordinated indenture, dated as of June 1,
1994, from Protective Life Corporation to the Debenture Trustee, as trustee and
any indenture supplemental thereto pursuant to which the Debentures are to be
issued.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Security" means a security representing a preferred
undivided beneficial interest in the assets of the Trust with such terms as may
be set out in any amendment to this Declaration.
"Regular Trustee" has the meaning set forth in Section 3.1.
"Securities" means the Common Securities and the Preferred
Securities.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, or any successor legislation.
"Sponsor" means Protective Life Corporation in its capacity as
sponsor of the Trust.
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"Trustee" or "Trustees" means each Person who has signed this
Declaration as a Trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as Trustees hereunder.
ARTICLE II.
ORGANIZATION
SECTION 2.1. Name. The Trust created by this Declaration is named
"PLC Capital Trust III." The Trust's activities may be conducted under the name
of the Trust or any other name deemed advisable by the Regular Trustees.
SECTION 2.2. Office. The address of the principal office of the
Trust is c/o Protective Life Corporation, 2801 Highway 280 South, Birmingham,
Alabama 35223. At any time, the Regular Trustees may designate another principal
office.
SECTION 2.3. Purpose. The exclusive purposes and functions of the
Trust are (i) issuing the Securities representing undivided beneficial interests
in the assets of the Trust, (ii) investing the gross proceeds of the Securities
in the Debentures and (iii) engaging in only those other activities necessary or
incidental thereto. The Trust shall not borrow money, issue debt or reinvest
proceeds derived from investments, pledge any of its assets, or otherwise
undertake (or permit to be undertaken) any activity that would cause the Trust
not to be classified for United States federal income tax purposes as a grantor
trust.
SECTION 2.4. Authority. Subject to the limitations provided in this
Declaration, the Regular Trustees shall have exclusive and complete authority to
carry out the purposes of the Trust. An action taken by the Regular Trustees in
accordance with their powers shall constitute the act of and serve to bind the
Trust. In dealing with the Regular Trustees acting on behalf of the Trust, no
person shall be required to inquire into the authority of the Regular Trustees
to bind the Trust. Persons dealing with the Trust are entitled to rely
conclusively on the power and authority of the Regular Trustees as set forth in
this Declaration.
SECTION 2.5. Title to Property of the Trust. Legal title to all
assets of the Trust shall be vested in the Trust.
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SECTION 2.6. Powers of the Trustees. The Regular Trustees shall have
the exclusive power and authority to cause the Trust to engage in the following
activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that
the Trust may issue no more than one series of Preferred Securities and no
more than one series of Common Securities, and, provided further, that
there shall be no interests in the Trust other than the Securities and the
issuance of the Securities shall be limited to a one-time, simultaneous
issuance of both Preferred Securities and Common Securities;
(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission a registration
statement on Form S-3 prepared by the Sponsor, including any
amendments thereto, in relation to the Preferred Securities;
(ii) execute and file any documents prepared by the Sponsor,
or take any acts as determined by the Sponsor to be necessary in
order to qualify or register all or part of the Preferred Securities
in any State in which the Sponsor has determined to qualify or
register such Preferred Securities for sale;
(iii) execute and file an application, prepared by the
Sponsor, to the New York Stock Exchange or any other national stock
exchange or the Nasdaq Stock Market's National Market for listing
upon notice of issuance of any Preferred Securities;
(iv) execute and file with the Commission a registration
statement on Form 8-A, including any amendments thereto, prepared by
the Sponsor relating to the registration of the Preferred Securities
under Section 12(b) of the Exchange Act; and
(v) execute and enter into an underwriting or purchase
agreement and pricing agreement providing for the sale of the
Preferred Securities;
(c) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors,
and consultants and provide for reasonable compensation for such services;
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(d) to incur expenses which are necessary or incidental to carry out
any of the purposes of this Declaration; and
(e) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing.
SECTION 2.7. Filing of Certificate of Trust. On or after the date of
execution of this Declaration, the Trustees shall cause the filing of the
Certificate of Trust for the Trust in the form attached hereto as Exhibit A with
the Secretary of State of the State of Delaware.
SECTION 2.8. Duration of Trust. The Trust, absent termination
pursuant to the provisions of Section 5.2, shall have existence for fifty-five
(55) years from the date hereof.
SECTION 2.9. Responsibilities of the Sponsor. In connection with the
issue and sale of the Preferred Securities, the Sponsor shall have the exclusive
right and responsibility to engage in the following activities:
(a) to prepare for filing by the Trust with the Commission a
registration statement on Form S-3 in relation to the Preferred
Securities, including any amendments thereto;
(b) to determine the States in which to take appropriate action to
qualify or register for sale all or part of the Preferred Securities and
to do any and all such acts, other than actions which must be taken by the
Trust, and advise the Trust of actions it must take, and prepare for
execution and filing any documents to be executed and filed by the Trust,
as the Sponsor deems necessary or advisable in order to comply with the
applicable laws of any such States;
(c) to prepare for filing by the Trust an application to the New
York Stock Exchange or any other national stock exchange or the Nasdaq
National Market for listing upon notice of issuance of any Preferred
Securities;
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the
class of Preferred Securities under Section 12(b) of the Exchange Act,
including any amendments thereto; and
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(e) to negotiate the terms of an underwriting or purchase agreement
and pricing agreement providing for the sale of the Preferred Securities.
SECTION 2.10. Declaration Binding on Securities Holders. Every
Person by virtue of having become a Holder of a Security or any interest therein
in accordance with the terms of this Declaration, shall be deemed to have
expressly assented and agreed to the terms of, and shall be bound by, this
Declaration.
ARTICLE III.
TRUSTEES
SECTION 3.1. Trustees. The number of Trustees initially shall be
three (3), and thereafter the number of Trustees shall be such number as shall
be fixed from time to time by a written instrument signed by the Sponsor. The
Sponsor is entitled to appoint or remove without cause any Trustee at any time;
provided, however, that the number of Trustees shall in no event be less than
two (2); provided further that one Trustee, in the case of a natural person,
shall be a person who is a resident of the State of Delaware or that, if not a
natural person, is an entity which has its principal place of business in the
State of Delaware (the "Delaware Trustee"); provided further that there shall be
at least one Trustee who is an employee or officer of, or is affiliated with,
the Sponsor (a "Regular Trustee").
SECTION 3.2. Regular Trustees. The initial Regular Trustees shall
be:
Richard J. Bielen
c/o Protective Life Corporation
2801 Highway 280 South
Birmingham, Alabama 35223
Jerry W. DeFoor
c/o Protective Life Corporation
2801 Highway 280 South
Birmingham, Alabama 35223
(a) Except as expressly set forth in this Declaration, any power of
the Regular Trustees may be exercised by, or with the consent of, any one such
Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees, and except
as otherwise required by the Business Trust Act, any Regular Trustee is
authorized to execute on
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behalf of the Trust any documents which the Regular Trustees have the power and
authority to cause the Trust to execute pursuant to Section 2.6, provided that,
the registration statement referred to in Section 2.6(b)(i), including any
amendments thereto, shall be signed by a majority of the Regular Trustees; and
(c) a Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purposes of signing any documents which the Regular Trustees
have power and authority to cause the Trust to execute pursuant to Section 2.6.
SECTION 3.3. Delaware Trustee. The initial Delaware Trustee shall
be:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration
Notwithstanding any other provision of this Declaration, the
Delaware Trustee shall not be entitled to exercise any of the powers of, nor
shall the Delaware Trustee have any of the duties and responsibilities of the
Regular Trustees described in this Declaration. The Delaware Trustee shall be a
Trustee for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Business Trust Act. Notwithstanding anything herein to the
contrary, the Delaware Trustee shall not be liable for the acts or omissions to
act of the Trust, of the Sponsor or of the Regular Trustees except such acts as
the Delaware Trustee is expressly obligated or authorized to undertake under
this Declaration or the Business Trust Act and except for the gross negligence
or willful misconduct of the Delaware Trustee.
SECTION 3.4. Institutional Trustee. Prior to the issuance of the
Preferred Securities and Common Securities, the Sponsor shall appoint a trustee
(the "Institutional Trustee") meeting the requirements of an eligible trustee
under the Trust Indenture Act of 1939, as amended, by the execution of an
amendment to this Declaration executed by the Regular Trustees, the Sponsor, the
Institutional Trustee and the Delaware Trustee.
SECTION 3.5. Not Responsible for Recitals or Sufficiency of
Declaration. The recitals contained in this Declaration shall be taken as the
statements of the Sponsor, and the Trustees do not assume any responsibility for
their correctness. The Trustees make no representations as to the value or
condition of the property of the Trust or any part thereof. The Trustees make no
representations as to the validity or sufficiency of this Declaration.
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ARTICLE IV.
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1. Exculpation. (a) No Indemnified Person shall be liable,
responsible or accountable in damages or otherwise to the Trust or any 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
Trust and in a manner such Indemnified Person reasonably believed to be within
the scope of the authority conferred on such Indemnified Person by this
Declaration or by law, except that an Indemnified Person shall be liable for any
such loss, damage or claim incurred by reason of such Indemnified Person's gross
negligence or willful misconduct with respect to such acts or omissions; and
(b) an Indemnified Person shall be fully protected in relying in
good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust 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 Trust, 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 holders of Securities might properly be paid.
SECTION 4.2. Fiduciary Duty. (a) To the extent that, at law or in
equity, an Indemnified Person has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to any other Covered Person, an
Indemnified Person acting under this Declaration shall not be liable to the
Trust or to any other Covered Person for its good faith reliance on the
provisions of this Declaration. The provisions of this Declaration, to the
extent that they restrict the duties and liabilities of an Indemnified Person
otherwise existing at law or in equity, are agreed by the parties hereto to
replace such other duties and liabilities of such Indemnified Person;
(b) unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between
Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person
shall act in a manner that
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is, or provides terms that are, fair and reasonable to the Trust or
any holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise; and
(c) whenever in this Declaration an Indemnified Person is permitted
or required to make a decision:
(i) in its "discretion" or under a grant of similar authority, the
Indemnified Person shall be entitled to consider 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 Trust 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 Declaration or
by applicable law.
SECTION 4.3. Indemnification. (a) (i) The Debenture Issuer shall
indemnify, to the full extent permitted by law, any Company Indemnified 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 the
Trust) by reason of the fact that he is or was a Company Indemnified Person
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him 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 the Trust,
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the Company Indemnified Person did not act in good faith and in a manner which
he reasonably believed to be in or not opposed to the best interests of the
Trust, and, with respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
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(ii) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Trust to procure a judgment in its favor by
reason of the fact that he is or was a Company Indemnified Person against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Trust and except that no such indemnification shall be
made in respect of any claim, issue or matter as to which such Company
Indemnified Person shall have been adjudged to be liable to the Trust unless and
only to the extent that the Court of Chancery of Delaware or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which such Court of Chancery or such other court shall deem proper.
(iii) To the extent that a Company Indemnified Person shall be
successful on the merits or otherwise (including dismissal of an action without
prejudice or the settlement of an action without admission of liability) in
defense of any action, suit or proceeding referred to in paragraphs (i) and (ii)
of this Section 4.3(a), or in defense of any claim, issue or matter therein, he
shall be indemnified, to the full extent permitted by law, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of this
Section 4.3(a) (unless ordered by a court) shall be made by the Debenture Issuer
only as authorized in the specific case upon a determination that
indemnification of the Company Indemnified Person is proper in the circumstances
because he has met the applicable standard of conduct set forth in paragraphs
(i) and (ii). Such determination shall be made (1) by the Regular Trustees by a
majority vote of a quorum consisting of such Regular Trustees who were not
parties to such action, suit or proceeding, (2) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of disinterested Regular
Trustees so directs, by independent legal counsel in a written opinion, or (3)
by the Common Security Holder of the Trust.
(v) Expenses (including attorneys' fees) incurred by a Company
Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in paragraphs (i) and (ii)
of this Section 4.3(a) shall be paid by the Debenture Issuer in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such Company Indemnified Person to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Debenture Issuer as authorized in this Section 4.3(a).
Notwithstanding the foregoing, no advance shall be made by the Debenture Issuer
if a determination is reasonably and promptly made (i) by the Regular
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Trustees by a majority vote of a quorum of disinterested Regular Trustees, (ii)
if such a quorum is not obtainable, or, even if obtainable, if a quorum of
disinterested Regular Trustees so directs, by independent legal counsel in a
written opinion or (iii) the Common Security Holder of the Trust, that, based
upon the facts known to the Regular Trustees, counsel or the Common Security
Holder at the time such determination is made, such Company Indemnified Person
acted in bad faith or in a manner that such person did not believe to be in or
not opposed to the best interests of the Trust, or, with respect to any criminal
proceeding, that such Company Indemnified Person believed or had reasonable
cause to believe his conduct was unlawful. In no event shall any advance be made
in instances where the Regular Trustees, independent legal counsel or Common
Security Holder reasonably determine that such person deliberately breached his
duty to the Trust or its Common or Preferred Security Holders.
(vi) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other paragraphs of this Section 4.3(a) shall not be
deemed exclusive of any other rights to which those seeking indemnification and
advancement of expenses may be entitled under any agreement, vote of
stockholders or disinterested directors of the Debenture Issuer or Preferred
Security Holders of the Trust or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office. All
rights to indemnification under this Section 4.3(a) shall be deemed to be
provided by a contract between the Debenture Issuer and each Company Indemnified
Person who serves in such capacity at any time while this Section 4.3(a) is in
effect. Any repeal or modification of this Section 4.3(a) shall not affect any
rights or obligations then existing.
(vii) The Debenture Issuer or the Trust may purchase and maintain
insurance on behalf of any person who is or was a Company Indemnified Person
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Debenture
Issuer would have the power to indemnify him against such liability under the
provisions of this Section 4.3 (a).
(viii) For purposes of this Section 4.3(a), references to "the
Trust" shall include, in addition to the resulting or surviving entity, any
constituent entity (including any constituent of a constituent) absorbed in a
consolidation or merger, so that any person who is or was a director, trustee,
officer or employee of such constituent entity, or is or was serving at the
request of such constituent entity as a director, trustee, officer, employee or
agent of another entity, shall stand in the same position under the provisions
of this Section 4.3(a) with respect to the resulting or surviving entity as he
would have with respect to such constituent entity if its separate existence had
continued.
(ix) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section 4.3(a) shall, unless otherwise provided when
authorized or ratified,
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continue as to a person who has ceased to be a Company Indemnified Person and
shall inure to the benefit of the heirs, executors and administrators of such a
person.
(b) The Debenture Issuer agrees to indemnify (i) the Delaware
Trustee, (ii) any Affiliate of the Delaware Trustee, and (iii) any officers,
directors, shareholders, members, partners, employees, representatives,
nominees, custodians or agents of the Delaware Trustee (each of the Persons in
(i) through (iii) being referred to as a "Fiduciary Indemnified Person") for,
and to hold each Fiduciary Indemnified Person harmless against, any loss,
liability or expense incurred without gross negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against, or
investigating, any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in this Section 4.3(b) shall survive the termination of
this Declaration.
SECTION 4.4. Outside Businesses. Any Covered Person, the Sponsor and
the Delaware Trustee may engage in or possess an interest in other business
ventures of any nature or description, independently or with others, similar or
dissimilar to the business of the Trust, and the Trust and the Holders shall
have no rights by virtue of this Declaration in and to such independent ventures
or the income or profits derived therefrom and the pursuit of any such venture,
even if competitive with the business of the Trust, shall not be deemed wrongful
or improper. Neither any Covered Person, the Sponsor nor the Delaware Trustee
shall be obligated to present any particular investment or other opportunity to
the Trust even if such opportunity is of a character that, if presented to the
Trust, could be taken by the Trust, and any Covered Person, the Sponsor and the
Delaware Trustee shall have the right to take for its own account (individually
or as a partner or fiduciary) or to recommend to others any such particular
investment or other opportunity. Any Covered Person and the Delaware Trustee may
engage or be interested in any financial or other transaction with the Sponsor
or any Affiliate of the Sponsor, or may act as depositary for, trustee or agent
for or may act on any committee or body of holders of, securities or other
obligations of the Sponsor or its Affiliates.
ARTICLE V.
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1. Amendments. At any time before the issue of any
Securities, this Declaration may be amended by, and only by, a written
instrument executed by all of the Regular Trustees and the Sponsor; provided,
however, if the amendment affects the rights,
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powers, duties, obligations or immunities of the Delaware Trustee, the amendment
shall also be approved by the Delaware Trustee.
SECTION 5.2. Termination of Trust. (a) The Trust shall terminate and
be of no further force or effect:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor or the revocation of the Sponsor's
charter or of the Trust's certificate of trust;
(iii) upon the entry of a decree of judicial dissolution of the
Sponsor, or the Trust; and
(iv) before the issue of any Securities, with the consent of all of
the Regular Trustees and the Sponsor; and
(b) as soon as is practicable after the occurrence of an event
referred to in Section 5.2(a), the Trustees shall file a certificate of
cancellation with the Secretary of State of the State of Delaware.
SECTION 5.3. Governing Law. This Declaration and the rights of the
parties hereunder shall be governed by and interpreted in accordance with the
laws of the State of Delaware and all rights and remedies shall be governed by
such laws without regard to principles of conflict of laws.
SECTION 5.4. Headings. Headings contained in this Declaration are
inserted for convenience of reference only and do not affect the interpretation
of this Declaration or any provision hereof.
SECTION 5.5. Successors and Assigns. Whenever in this Declaration
any of the parties hereto is named or referred to, the successors and assigns of
such party shall be deemed to be included, and all covenants and agreements in
this Declaration by the Sponsor and the Trustees shall bind and inure to the
benefit of their respective successors and assigns, whether so expressed.
SECTION 5.6. Partial Enforceability. If any provision of this
Declaration, or the application of such provision to any Person or circumstance,
shall be held invalid, the
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remainder of this Declaration, or the application of such provision to persons
or circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 5.7. Counterparts. This Declaration may contain more than
one counterpart of the signature page and this Declaration may be executed by
the affixing of the signature of each of the Trustees to one of such counterpart
signature pages. All of such counterpart signature pages shall be read as though
one, and they shall have the same force and effect as though all of the signers
had signed a single signature page.
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IN WITNESS WHEREOF, the undersigned has caused this Declaration of
Trust of PLC Capital Trust III to be executed as of the day and year first above
written.
/s/ Richard J. Bielen
-----------------------------------
Name: Richard J. Bielen
Title: Regular Trustee
/s/ Jerry W. DeFoor
-----------------------------------
Name: Jerry W. DeFoor
Title: Regular Trustee
WILMINGTON TRUST COMPANY,
as Delaware Trustee
/s/ Debra Eberly
-----------------------------------
Name: Debra Eberly
Title: Administrative Account Manager
PROTECTIVE LIFE CORPORATION, as
Sponsor
/s/ Richard J. Bielen
-----------------------------------
Name: Richard J. Bielen
Title: Senior Vice President, Investments
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
The undersigned, the trustees of PLC Capital Trust III, desiring to
form a business trust pursuant to Delaware Business Trust Act, 12 Del. C.
Section 3810, hereby certify as follows:
(a) The name of the business trust being formed hereby (the "Trust")
is "PLC Capital Trust III".
(b) The name and business address of the trustee of the Trust which
has its principal place of business in the State of Delaware is as
follows:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration
(c) This Certificate of Trust shall be effective as of the date of
filing.
Dated: July 1, 1997
------------------------------------
Richard J. Bielen, as Trustee
------------------------------------
Jerry W. DeFoor, as Trustee
WILMINGTON TRUST COMPANY, as Trustee
By:
---------------------------------
Name:
Title:
<PAGE>
EXHIBIT 4(ff)
DECLARATION OF TRUST
PLC CAPITAL TRUST IV
Dated as of July 1, 1997
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I.
DEFINITIONS
SECTION 1.1. Definitions..............................................1
ARTICLE II.
ORGANIZATION
SECTION 2.1. Name.....................................................4
SECTION 2.2. Office...................................................4
SECTION 2.3. Purpose..................................................4
SECTION 2.4. Authority................................................4
SECTION 2.5. Title to Property of the Trust...........................4
SECTION 2.6. Powers of the Trustees...................................5
SECTION 2.7. Filing of Certificate of Trust...........................6
SECTION 2.8. Duration of Trust........................................6
SECTION 2.9. Responsibilities of the Sponsor..........................6
SECTION 2.10. Declaration Binding on Securities Holders...............7
ARTICLE III
TRUSTEES
SECTION 3.1. Trustees.................................................7
SECTION 3.2. Regular Trustees.........................................7
SECTION 3.3. Delaware Trustee.........................................8
SECTION 3.4. Institutional Trustee....................................8
SECTION 3.5. Not Responsible for Recitals or Sufficiency of
Declaration .............................................8
ARTICLE IV.
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1. Exculpation..............................................9
i
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Page
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SECTION 4.2. Fiduciary Duty...........................................9
SECTION 4.3. Indemnification.........................................10
SECTION 4.4. Outside Businesses......................................13
ARTICLE V.
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1. Amendments..............................................13
SECTION 5.2. Termination of Trust....................................14
SECTION 5.3. Governing Law...........................................14
SECTION 5.4. Headings................................................14
SECTION 5.5. Successors and Assigns..................................14
SECTION 5.6. Partial Enforceability..................................14
SECTION 5.7. Counterparts............................................15
ii
<PAGE>
DECLARATION OF TRUST
OF
PLC CAPITAL TRUST IV
July 1, 1997
DECLARATION OF TRUST ("Declaration") dated and effective as of July
1, 1997 by the undersigned Trustees (together with all other persons from time
to time duly appointed and serving as trustees in accordance with the provisions
of this Declaration, the "Trustees"), Protective Life Corporation, a Delaware
corporation, as trust sponsor (the "Sponsor"), and by the holders, from time to
time, of undivided beneficial interests in the assets of the Trust to be issued
pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor desire to establish a trust
(the "Trust") pursuant to the Delaware Business Trust Act for the sole purpose
of issuing and selling certain securities representing undivided beneficial
interests in the assets of the Trust and investing the proceeds thereof in
certain Debentures of the Debenture Issuer (each as hereinafter defined); and
NOW, THEREFORE, it being the intention of the parties hereto that
the Trust constitute a business trust under the Business Trust Act and that this
Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I.
DEFINITIONS
SECTION 1.1. Definitions. Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in
the preamble above have the respective meanings assigned to them in this
Section 1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
<PAGE>
(c) all references to "the Declaration" or "this Declaration" are to
this Declaration of Trust as modified, supplemented or amended from time
to time;
(d) all references in this Declaration to Articles and Sections are
to Articles and Sections of this Declaration unless otherwise specified;
and
(e) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405
of the Securities Act or any successor rule thereunder.
"Business Day" means any day other than a day on which banking
institutions in New York, New York are authorized or required by law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code Section 3801 et seq., as it may be amended from time to time,
or any successor legislation.
"Commission" means the Securities and Exchange Commission.
"Common Security" means a security representing a common undivided
beneficial interest in the assets of the Trust with such terms as may be set out
in any amendment to this Declaration.
"Company Indemnified Person" means (a) any Regular Trustee; (b) any
Affiliate of any Regular Trustee; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Regular Trustee;
or (d) any employee or agent of the Trust or its Affiliates.
"Covered Person" means (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates and (b) any holder of Securities.
"Debenture Issuer" means Protective Life Corporation in its capacity
as the issuer of the Debentures under the Indenture.
"Debentures" means the series of Debentures to be issued by the
Debenture Issuer and acquired by the Trust.
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"Debenture Trustee" means AmSouth Bank (as successor by merger to
AmSouth Bank of Alabama, successor by conversion of charter to AmSouth Bank
N.A.), as trustee under the Indenture until a successor is appointed thereunder,
and thereafter means such successor trustee.
"Delaware Trustee" has the meaning set forth in Section 3.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in Section
4.3 (b).
"Holder" means the person in whose name a certificate representing a
Security is registered.
"Indemnified Person" means a Company Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the subordinated indenture, dated as of June 1,
1994, from Protective Life Corporation to the Debenture Trustee, as trustee and
any indenture supplemental thereto pursuant to which the Debentures are to be
issued.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Security" means a security representing a preferred
undivided beneficial interest in the assets of the Trust with such terms as may
be set out in any amendment to this Declaration.
"Regular Trustee" has the meaning set forth in Section 3.1.
"Securities" means the Common Securities and the Preferred
Securities.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, or any successor legislation.
"Sponsor" means Protective Life Corporation in its capacity as
sponsor of the Trust.
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"Trustee" or "Trustees" means each Person who has signed this
Declaration as a Trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as Trustees hereunder.
ARTICLE II.
ORGANIZATION
SECTION 2.1. Name. The Trust created by this Declaration is named
"PLC Capital Trust IV." The Trust's activities may be conducted under the name
of the Trust or any other name deemed advisable by the Regular Trustees.
SECTION 2.2. Office. The address of the principal office of the
Trust is c/o Protective Life Corporation, 2801 Highway 280 South, Birmingham,
Alabama 35223. At any time, the Regular Trustees may designate another principal
office.
SECTION 2.3. Purpose. The exclusive purposes and functions of the
Trust are (i) issuing the Securities representing undivided beneficial interests
in the assets of the Trust, (ii) investing the gross proceeds of the Securities
in the Debentures and (iii) engaging in only those other activities necessary or
incidental thereto. The Trust shall not borrow money, issue debt or reinvest
proceeds derived from investments, pledge any of its assets, or otherwise
undertake (or permit to be undertaken) any activity that would cause the Trust
not to be classified for United States federal income tax purposes as a grantor
trust.
SECTION 2.4. Authority. Subject to the limitations provided in this
Declaration, the Regular Trustees shall have exclusive and complete authority to
carry out the purposes of the Trust. An action taken by the Regular Trustees in
accordance with their powers shall constitute the act of and serve to bind the
Trust. In dealing with the Regular Trustees acting on behalf of the Trust, no
person shall be required to inquire into the authority of the Regular Trustees
to bind the Trust. Persons dealing with the Trust are entitled to rely
conclusively on the power and authority of the Regular Trustees as set forth in
this Declaration.
SECTION 2.5. Title to Property of the Trust. Legal title to all
assets of the Trust shall be vested in the Trust.
4
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SECTION 2.6. Powers of the Trustees. The Regular Trustees shall have
the exclusive power and authority to cause the Trust to engage in the following
activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that
the Trust may issue no more than one series of Preferred Securities and no
more than one series of Common Securities, and, provided further, that
there shall be no interests in the Trust other than the Securities and the
issuance of the Securities shall be limited to a one-time, simultaneous
issuance of both Preferred Securities and Common Securities;
(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission a registration
statement on Form S-3 prepared by the Sponsor, including any
amendments thereto, in relation to the Preferred Securities;
(ii) execute and file any documents prepared by the Sponsor,
or take any acts as determined by the Sponsor to be necessary in
order to qualify or register all or part of the Preferred Securities
in any State in which the Sponsor has determined to qualify or
register such Preferred Securities for sale;
(iii) execute and file an application, prepared by the
Sponsor, to the New York Stock Exchange or any other national stock
exchange or the Nasdaq Stock Market's National Market for listing
upon notice of issuance of any Preferred Securities;
(iv) execute and file with the Commission a registration
statement on Form 8-A, including any amendments thereto, prepared by
the Sponsor relating to the registration of the Preferred Securities
under Section 12(b) of the Exchange Act; and
(v) execute and enter into an underwriting or purchase
agreement and pricing agreement providing for the sale of the
Preferred Securities;
(c) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors,
and consultants and provide for reasonable compensation for such services;
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<PAGE>
(d) to incur expenses which are necessary or incidental to carry out
any of the purposes of this Declaration; and
(e) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing.
SECTION 2.7. Filing of Certificate of Trust. On or after the date of
execution of this Declaration, the Trustees shall cause the filing of the
Certificate of Trust for the Trust in the form attached hereto as Exhibit A with
the Secretary of State of the State of Delaware.
SECTION 2.8. Duration of Trust. The Trust, absent termination
pursuant to the provisions of Section 5.2, shall have existence for fifty-five
(55) years from the date hereof.
SECTION 2.9. Responsibilities of the Sponsor. In connection with the
issue and sale of the Preferred Securities, the Sponsor shall have the exclusive
right and responsibility to engage in the following activities:
(a) to prepare for filing by the Trust with the Commission a
registration statement on Form S-3 in relation to the Preferred
Securities, including any amendments thereto;
(b) to determine the States in which to take appropriate action to
qualify or register for sale all or part of the Preferred Securities and
to do any and all such acts, other than actions which must be taken by the
Trust, and advise the Trust of actions it must take, and prepare for
execution and filing any documents to be executed and filed by the Trust,
as the Sponsor deems necessary or advisable in order to comply with the
applicable laws of any such States;
(c) to prepare for filing by the Trust an application to the New
York Stock Exchange or any other national stock exchange or the Nasdaq
National Market for listing upon notice of issuance of any Preferred
Securities;
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the
class of Preferred Securities under Section 12(b) of the Exchange Act,
including any amendments thereto; and
6
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(e) to negotiate the terms of an underwriting or purchase agreement
and pricing agreement providing for the sale of the Preferred Securities.
SECTION 2.10. Declaration Binding on Securities Holders. Every
Person by virtue of having become a Holder of a Security or any interest therein
in accordance with the terms of this Declaration, shall be deemed to have
expressly assented and agreed to the terms of, and shall be bound by, this
Declaration.
ARTICLE III.
TRUSTEES
SECTION 3.1. Trustees. The number of Trustees initially shall be
three (3), and thereafter the number of Trustees shall be such number as shall
be fixed from time to time by a written instrument signed by the Sponsor. The
Sponsor is entitled to appoint or remove without cause any Trustee at any time;
provided, however, that the number of Trustees shall in no event be less than
two (2); provided further that one Trustee, in the case of a natural person,
shall be a person who is a resident of the State of Delaware or that, if not a
natural person, is an entity which has its principal place of business in the
State of Delaware (the "Delaware Trustee"); provided further that there shall be
at least one Trustee who is an employee or officer of, or is affiliated with,
the Sponsor (a "Regular Trustee").
SECTION 3.2. Regular Trustees. The initial Regular Trustees shall
be:
Richard J. Bielen
c/o Protective Life Corporation
2801 Highway 280 South
Birmingham, Alabama 35223
Jerry W. DeFoor
c/o Protective Life Corporation
2801 Highway 280 South
Birmingham, Alabama 35223
(a) Except as expressly set forth in this Declaration, any power of
the Regular Trustees may be exercised by, or with the consent of, any one such
Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees, and except
as otherwise required by the Business Trust Act, any Regular Trustee is
authorized to execute on
7
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behalf of the Trust any documents which the Regular Trustees have the power and
authority to cause the Trust to execute pursuant to Section 2.6, provided that,
the registration statement referred to in Section 2.6(b)(i), including any
amendments thereto, shall be signed by a majority of the Regular Trustees; and
(c) a Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purposes of signing any documents which the Regular Trustees
have power and authority to cause the Trust to execute pursuant to Section 2.6.
SECTION 3.3. Delaware Trustee. The initial Delaware Trustee shall
be:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration
Notwithstanding any other provision of this Declaration, the
Delaware Trustee shall not be entitled to exercise any of the powers of, nor
shall the Delaware Trustee have any of the duties and responsibilities of the
Regular Trustees described in this Declaration. The Delaware Trustee shall be a
Trustee for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Business Trust Act. Notwithstanding anything herein to the
contrary, the Delaware Trustee shall not be liable for the acts or omissions to
act of the Trust, of the Sponsor or of the Regular Trustees except such acts as
the Delaware Trustee is expressly obligated or authorized to undertake under
this Declaration or the Business Trust Act and except for the gross negligence
or willful misconduct of the Delaware Trustee.
SECTION 3.4. Institutional Trustee. Prior to the issuance of the
Preferred Securities and Common Securities, the Sponsor shall appoint a trustee
(the "Institutional Trustee") meeting the requirements of an eligible trustee
under the Trust Indenture Act of 1939, as amended, by the execution of an
amendment to this Declaration executed by the Regular Trustees, the Sponsor, the
Institutional Trustee and the Delaware Trustee.
SECTION 3.5. Not Responsible for Recitals or Sufficiency of
Declaration. The recitals contained in this Declaration shall be taken as the
statements of the Sponsor, and the Trustees do not assume any responsibility for
their correctness. The Trustees make no representations as to the value or
condition of the property of the Trust or any part thereof. The Trustees make no
representations as to the validity or sufficiency of this Declaration.
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ARTICLE IV.
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1. Exculpation. (a) No Indemnified Person shall be liable,
responsible or accountable in damages or otherwise to the Trust or any 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
Trust and in a manner such Indemnified Person reasonably believed to be within
the scope of the authority conferred on such Indemnified Person by this
Declaration or by law, except that an Indemnified Person shall be liable for any
such loss, damage or claim incurred by reason of such Indemnified Person's gross
negligence or willful misconduct with respect to such acts or omissions; and
(b) an Indemnified Person shall be fully protected in relying in
good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust 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 Trust, 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 holders of Securities might properly be paid.
SECTION 4.2. Fiduciary Duty. (a) To the extent that, at law or in
equity, an Indemnified Person has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to any other Covered Person, an
Indemnified Person acting under this Declaration shall not be liable to the
Trust or to any other Covered Person for its good faith reliance on the
provisions of this Declaration. The provisions of this Declaration, to the
extent that they restrict the duties and liabilities of an Indemnified Person
otherwise existing at law or in equity, are agreed by the parties hereto to
replace such other duties and liabilities of such Indemnified Person;
(b) unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between
Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person
shall act in a manner that
9
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is, or provides terms that are, fair and reasonable to the Trust or
any holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise; and
(c) whenever in this Declaration an Indemnified Person is permitted
or required to make a decision:
(i) in its "discretion" or under a grant of similar authority, the
Indemnified Person shall be entitled to consider 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 Trust 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 Declaration or
by applicable law.
SECTION 4.3. Indemnification. (a) (i) The Debenture Issuer shall
indemnify, to the full extent permitted by law, any Company Indemnified 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 the
Trust) by reason of the fact that he is or was a Company Indemnified Person
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him 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 the Trust,
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the Company Indemnified Person did not act in good faith and in a manner which
he reasonably believed to be in or not opposed to the best interests of the
Trust, and, with respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
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(ii) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Trust to procure a judgment in its favor by
reason of the fact that he is or was a Company Indemnified Person against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Trust and except that no such indemnification shall be
made in respect of any claim, issue or matter as to which such Company
Indemnified Person shall have been adjudged to be liable to the Trust unless and
only to the extent that the Court of Chancery of Delaware or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which such Court of Chancery or such other court shall deem proper.
(iii) To the extent that a Company Indemnified Person shall be
successful on the merits or otherwise (including dismissal of an action without
prejudice or the settlement of an action without admission of liability) in
defense of any action, suit or proceeding referred to in paragraphs (i) and (ii)
of this Section 4.3(a), or in defense of any claim, issue or matter therein, he
shall be indemnified, to the full extent permitted by law, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of this
Section 4.3(a) (unless ordered by a court) shall be made by the Debenture Issuer
only as authorized in the specific case upon a determination that
indemnification of the Company Indemnified Person is proper in the circumstances
because he has met the applicable standard of conduct set forth in paragraphs
(i) and (ii). Such determination shall be made (1) by the Regular Trustees by a
majority vote of a quorum consisting of such Regular Trustees who were not
parties to such action, suit or proceeding, (2) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of disinterested Regular
Trustees so directs, by independent legal counsel in a written opinion, or (3)
by the Common Security Holder of the Trust.
(v) Expenses (including attorneys' fees) incurred by a Company
Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in paragraphs (i) and (ii)
of this Section 4.3(a) shall be paid by the Debenture Issuer in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such Company Indemnified Person to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Debenture Issuer as authorized in this Section 4.3(a).
Notwithstanding the foregoing, no advance shall be made by the Debenture Issuer
if a determination is reasonably and promptly made (i) by the Regular
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Trustees by a majority vote of a quorum of disinterested Regular Trustees, (ii)
if such a quorum is not obtainable, or, even if obtainable, if a quorum of
disinterested Regular Trustees so directs, by independent legal counsel in a
written opinion or (iii) the Common Security Holder of the Trust, that, based
upon the facts known to the Regular Trustees, counsel or the Common Security
Holder at the time such determination is made, such Company Indemnified Person
acted in bad faith or in a manner that such person did not believe to be in or
not opposed to the best interests of the Trust, or, with respect to any criminal
proceeding, that such Company Indemnified Person believed or had reasonable
cause to believe his conduct was unlawful. In no event shall any advance be made
in instances where the Regular Trustees, independent legal counsel or Common
Security Holder reasonably determine that such person deliberately breached his
duty to the Trust or its Common or Preferred Security Holders.
(vi) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other paragraphs of this Section 4.3(a) shall not be
deemed exclusive of any other rights to which those seeking indemnification and
advancement of expenses may be entitled under any agreement, vote of
stockholders or disinterested directors of the Debenture Issuer or Preferred
Security Holders of the Trust or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office. All
rights to indemnification under this Section 4.3(a) shall be deemed to be
provided by a contract between the Debenture Issuer and each Company Indemnified
Person who serves in such capacity at any time while this Section 4.3(a) is in
effect. Any repeal or modification of this Section 4.3(a) shall not affect any
rights or obligations then existing.
(vii) The Debenture Issuer or the Trust may purchase and maintain
insurance on behalf of any person who is or was a Company Indemnified Person
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Debenture
Issuer would have the power to indemnify him against such liability under the
provisions of this Section 4.3 (a).
(viii) For purposes of this Section 4.3(a), references to "the
Trust" shall include, in addition to the resulting or surviving entity, any
constituent entity (including any constituent of a constituent) absorbed in a
consolidation or merger, so that any person who is or was a director, trustee,
officer or employee of such constituent entity, or is or was serving at the
request of such constituent entity as a director, trustee, officer, employee or
agent of another entity, shall stand in the same position under the provisions
of this Section 4.3(a) with respect to the resulting or surviving entity as he
would have with respect to such constituent entity if its separate existence had
continued.
(ix) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section 4.3(a) shall, unless otherwise provided when
authorized or ratified,
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continue as to a person who has ceased to be a Company Indemnified Person and
shall inure to the benefit of the heirs, executors and administrators of such a
person.
(b) The Debenture Issuer agrees to indemnify (i) the Delaware
Trustee, (ii) any Affiliate of the Delaware Trustee, and (iii) any officers,
directors, shareholders, members, partners, employees, representatives,
nominees, custodians or agents of the Delaware Trustee (each of the Persons in
(i) through (iii) being referred to as a "Fiduciary Indemnified Person") for,
and to hold each Fiduciary Indemnified Person harmless against, any loss,
liability or expense incurred without gross negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against, or
investigating, any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in this Section 4.3(b) shall survive the termination of
this Declaration.
SECTION 4.4. Outside Businesses. Any Covered Person, the Sponsor and
the Delaware Trustee may engage in or possess an interest in other business
ventures of any nature or description, independently or with others, similar or
dissimilar to the business of the Trust, and the Trust and the Holders shall
have no rights by virtue of this Declaration in and to such independent ventures
or the income or profits derived therefrom and the pursuit of any such venture,
even if competitive with the business of the Trust, shall not be deemed wrongful
or improper. Neither any Covered Person, the Sponsor nor the Delaware Trustee
shall be obligated to present any particular investment or other opportunity to
the Trust even if such opportunity is of a character that, if presented to the
Trust, could be taken by the Trust, and any Covered Person, the Sponsor and the
Delaware Trustee shall have the right to take for its own account (individually
or as a partner or fiduciary) or to recommend to others any such particular
investment or other opportunity. Any Covered Person and the Delaware Trustee may
engage or be interested in any financial or other transaction with the Sponsor
or any Affiliate of the Sponsor, or may act as depositary for, trustee or agent
for or may act on any committee or body of holders of, securities or other
obligations of the Sponsor or its Affiliates.
ARTICLE V.
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1. Amendments. At any time before the issue of any
Securities, this Declaration may be amended by, and only by, a written
instrument executed by all of the Regular Trustees and the Sponsor; provided,
however, if the amendment affects the rights,
13
<PAGE>
powers, duties, obligations or immunities of the Delaware Trustee, the amendment
shall also be approved by the Delaware Trustee.
SECTION 5.2. Termination of Trust. (a) The Trust shall terminate and
be of no further force or effect:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor or the revocation of the Sponsor's
charter or of the Trust's certificate of trust;
(iii) upon the entry of a decree of judicial dissolution of the
Sponsor, or the Trust; and
(iv) before the issue of any Securities, with the consent of all of
the Regular Trustees and the Sponsor; and
(b) as soon as is practicable after the occurrence of an event
referred to in Section 5.2(a), the Trustees shall file a certificate of
cancellation with the Secretary of State of the State of Delaware.
SECTION 5.3. Governing Law. This Declaration and the rights of the
parties hereunder shall be governed by and interpreted in accordance with the
laws of the State of Delaware and all rights and remedies shall be governed by
such laws without regard to principles of conflict of laws.
SECTION 5.4. Headings. Headings contained in this Declaration are
inserted for convenience of reference only and do not affect the interpretation
of this Declaration or any provision hereof.
SECTION 5.5. Successors and Assigns. Whenever in this Declaration
any of the parties hereto is named or referred to, the successors and assigns of
such party shall be deemed to be included, and all covenants and agreements in
this Declaration by the Sponsor and the Trustees shall bind and inure to the
benefit of their respective successors and assigns, whether so expressed.
SECTION 5.6. Partial Enforceability. If any provision of this
Declaration, or the application of such provision to any Person or circumstance,
shall be held invalid, the
14
<PAGE>
remainder of this Declaration, or the application of such provision to persons
or circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 5.7. Counterparts. This Declaration may contain more than
one counterpart of the signature page and this Declaration may be executed by
the affixing of the signature of each of the Trustees to one of such counterpart
signature pages. All of such counterpart signature pages shall be read as though
one, and they shall have the same force and effect as though all of the signers
had signed a single signature page.
15
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Declaration of
Trust of PLC Capital Trust IV to be executed as of the day and year first above
written.
/s/ Richard J. Bielen
----------------------------------
Name: Richard J. Bielen
Title: Regular Trustee
/s/ Jerry W. DeFoor
----------------------------------
Name: Jerry W. DeFoor
Title: Regular Trustee
WILMINGTON TRUST COMPANY,
as Delaware Trustee
/s/ Debra Eberly
----------------------------------
Name: Debra Eberly
Title: Administrative Account Manager
PROTECTIVE LIFE CORPORATION, as
Sponsor
/s/ Richard J. Bielen
----------------------------------
Name: Richard J. Bielen
Title: Senior Vice President, Investments
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
The undersigned, the trustees of PLC Capital Trust IV, desiring to
form a business trust pursuant to Delaware Business Trust Act, 12 Del. C.
Section 3810, hereby certify as follows:
(a) The name of the business trust being formed hereby (the "Trust")
is "PLC Capital Trust IV".
(b) The name and business address of the trustee of the Trust which
has its principal place of business in the State of Delaware is as
follows:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration
(c) This Certificate of Trust shall be effective as of the date of
filing.
Dated: July 1, 1997
----------------------------------------
Richard J. Bielen, as Trustee
----------------------------------------
Jerry W. DeFoor, as Trustee
WILMINGTON TRUST COMPANY, as Trustee
By:
-------------------------------------
Name:
Title:
<PAGE>
EXHIBIT 4(gg)
Draft--July 7, 1997
================================================================================
AMENDED AND RESTATED DECLARATION
OF TRUST
PLC CAPITAL TRUST II
Dated as of __________, 199_
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I.
INTERPRETATION AND DEFINITIONS
SECTION 1.1. Definitions..............................................2
ARTICLE II.
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application.........................8
SECTION 2.2. Lists of Holders of Securities...........................9
SECTION 2.3. Reports by the Institutional Trustee.....................9
SECTION 2.4. Periodic Reports to Institutional Trustee................9
SECTION 2.5. Evidence of Compliance with Conditions Precedent.........9
SECTION 2.6. Events of Default; Waiver...............................10
SECTION 2.7. Event of Default; Notice................................11
ARTICLE III.
ORGANIZATION
SECTION 3.1. Name....................................................12
SECTION 3.2. Office..................................................12
SECTION 3.3. Purpose.................................................12
SECTION 3.4. Authority...............................................13
SECTION 3.5. Title to Property of the Trust..........................13
SECTION 3.6. Powers and Duties of the Regular Trustees...............13
SECTION 3.7. Prohibition of Actions by the Trust and the Trustees....16
SECTION 3.8. Powers and Duties of the Institutional Trustee..........17
SECTION 3.9. Certain Duties and Responsibilities of the
Institutional Trustee ..............................19
SECTION 3.10. Certain Rights of Institutional Trustee................21
SECTION 3.11. Delaware Trustee.......................................23
SECTION 3.12. Execution of Documents.................................23
SECTION 3.13. Not Responsible for Recitals or Issuance of Securities.24
i
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Page
----
SECTION 3.14. Duration of Trust......................................24
SECTION 3.15. Mergers................................................24
ARTICLE IV.
SPONSOR
SECTION 4.1. Sponsor's Purchase of Common Securities.................26
SECTION 4.2. Responsibilities of the Sponsor.........................26
ARTICLE V.
TRUSTEES
SECTION 5.1. Number of Trustees......................................27
SECTION 5.2. Delaware Trustee........................................27
SECTION 5.3. Institutional Trustee; Eligibility......................28
SECTION 5.4. Certain Qualifications of Regular Trustees and
Delaware Trustee Generally..........................29
SECTION 5.5. Regular Trustees........................................29
SECTION 5.6. Appointment, Removal and Resignation of Trustees........29
SECTION 5.7. Vacancies Among Trustees................................31
SECTION 5.8. Effect of Vacancies.....................................31
SECTION 5.9. Meetings................................................31
SECTION 5.10. Delegation of Power....................................32
SECTION 5.11. Merger, Conversion, Consolidation or Succession
to Business ........................................32
ARTICLE VI.
DISTRIBUTIONS
SECTION 6.1. Distributions...........................................33
ARTICLE VII.
ISSUANCE OF SECURITIES
ii
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Page
----
SECTION 7.1. General Provisions Regarding Securities.................33
SECTION 7.2. Paying Agent............................................34
ARTICLE VIII.
TERMINATION OF TRUST
SECTION 8.1. Termination of Trust....................................34
ARTICLE IX.
TRANSFER OF INTERESTS
SECTION 9.1. Transfer of Securities..................................35
SECTION 9.2. Transfer of Certificates................................36
SECTION 9.3. Deemed Security Holders.................................36
SECTION 9.4. Book Entry Interests....................................36
SECTION 9.5. Notices to Clearing Agency..............................37
SECTION 9.6. Appointment of Successor Clearing Agency................37
SECTION 9.7. Definitive Preferred Security Certificates..............38
SECTION 9.8. Mutilated, Destroyed, Lost or Stolen Certificates.......38
ARTICLE X.
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1. Liability..............................................39
SECTION 10.2. Exculpation............................................39
SECTION 10.3. Fiduciary Duty.........................................40
SECTION 10.4. Indemnification........................................41
SECTION 10.5. Outside Businesses.....................................44
ARTICLE XI.
ACCOUNTING
iii
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Page
----
SECTION 11.1. Fiscal Year............................................44
SECTION 11.2. Certain Accounting Matters.............................44
SECTION 11.3. Banking................................................45
SECTION 11.4. Withholding............................................45
ARTICLE XII.
AMENDMENTS AND MEETINGS
SECTION 12.1. Amendments.............................................46
SECTION 12.2. Meetings of the Holders of Securities; Action
by Written Consent .................................47
ARTICLE XIII.
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1. Representations and Warranties of Institutional
Trustee ............................................49
SECTION 13.2. Representations and Warranties of Delaware Trustee.....50
ARTICLE XIV.
MISCELLANEOUS
SECTION 14.1. Notices................................................51
SECTION 14.2. Governing Law..........................................52
SECTION 14.3. Intention of the Parties...............................52
SECTION 14.4. Headings...............................................52
SECTION 14.5. Successors and Assigns.................................52
SECTION 14.6. Partial Enforceability.................................52
SECTION 14.7. Counterparts...........................................52
ANNEX I TERMS OF SECURITIES
EXHIBIT A-1 FORM OF PREFERRED SECURITY CERTIFICATE
EXHIBIT A-2 FORM OF COMMON SECURITY CERTIFICATE
iv
<PAGE>
Page
----
EXHIBIT B SPECIMEN OF DEBENTURE
EXHIBIT C PURCHASE AGREEMENT
v
<PAGE>
CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as amended Declaration
310 (a)..................................................... 5.3(a)
310 (c)..................................................... Inapplicable
311 (c)..................................................... Inapplicable
312 (a)..................................................... 2.2(a)
312 (b)..................................................... 2.2(b)
313......................................................... 2.3
314 (a)..................................................... 2.4
314 (b)..................................................... Inapplicable
314 (c)..................................................... 2.5
314 (d)..................................................... Inapplicable
314 (f)..................................................... Inapplicable
315 (a)..................................................... 3.9(b)
315 (c)..................................................... 3.9(a)
315 (d)..................................................... 3.9(a)
316 (a)..................................................... Annex I
316 (c)..................................................... 3.6(e)
* This Cross-Reference Table does not constitute part of the Declaration and
shall not affect the interpretation of any of its terms or provisions.
vi
<PAGE>
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
PLC CAPITAL TRUST II
__________, 199_
AMENDED AND RESTATED DECLARATION OF TRUST (this
"Declaration") dated and effective as of __________, 199_, by the Trustees (as
defined herein), the Sponsor (as defined herein) and by the holders, from time
to time, of undivided beneficial interests in the assets of the Trust (as
defined herein) to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor established PLC Capital Trust
II (the "Trust"), a trust under the Delaware Business Trust Act, pursuant to a
Declaration of Trust dated as of __________, 199_ (the "Original Declaration")
and a Certificate of Trust filed with the Secretary of State of the State of
Delaware on __________, 199_, for the sole purpose of issuing and selling
certain securities representing undivided beneficial interests in the assets of
the Trust and investing the proceeds thereof in certain Debentures of the
Debenture Issuer;
WHEREAS, prior to the execution hereof, no interests in the Trust
have been issued;
WHEREAS, all of the Trustees and the Sponsor, by this Declaration,
amend and restate each and every term and provision of the Original Declaration;
and
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a business trust under the Business Trust Act and that
this Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
<PAGE>
ARTICLE I.
INTERPRETATION AND DEFINITIONS
SECTION 1.1. Definitions. Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in
the preamble above have the respective meanings assigned to them in this
Section 1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to
this Declaration as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles and Sections and
Annexes and Exhibits are to Articles and Sections of and Annexes and
Exhibits to this Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Declaration unless otherwise defined in this Declaration
or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405
of the Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent.
"Authorized Officer" of a Person means any Person that is authorized
to bind such Person.
"Book Entry Interest" means a beneficial interest in a Global
Certificate, ownership and transfers of which shall be maintained and made
through book entries by a Clearing Agency as described in Section 9.4.
"Business Day" means any day other than a day on which banking
institutions in New York, New York are authorized or required by law to close.
2
<PAGE>
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code Section 3801 et seq., as it may be amended from time to time,
or any successor legislation.
"Certificate" means a Common Security Certificate or a Preferred
Security Certificate.
"Clearing Agency" means an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as depositary
for the Preferred Securities and in whose name or in the name of a nominee of
that organization shall be registered a Global Certificate and which shall
undertake to effect book entry transfers and pledges of the Preferred
Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Clearing
Agency effects book entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means the "Closing Time" under the Purchase
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, or any successor legislation.
"Commission" means the Securities and Exchange Commission.
"Common Security" has the meaning specified in Section 7.1.
"Common Securities Guarantee" means the guarantee agreement, dated
as of _________, 199_, of the Sponsor in respect of the Common Securities.
"Common Security Certificate" means a definitive certificate in
fully registered form, substantially in the form of Exhibit A-2, representing a
Common Security.
"Company Indemnified Person" means (a) any Regular Trustee; (b) any
Affiliate of any Regular Trustee; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Regular Trustee;
or (d) any officer, employee or agent of the Trust or its Affiliates.
"Corporate Trust Office" means the office of the Institutional
Trustee at which the corporate trust business of the Preferred Guarantee Trustee
shall, at any particular time, be principally administered, which office at the
date of execution of this Declaration located at
3
<PAGE>
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
"Covered Person" means: (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates; and (b) any Holder of Securities.
"Debenture Issuer" means Protective Life Corporation, a Delaware
corporation, in its capacity as issuer of the Debentures under the Indenture.
"Debenture Trustee" means AmSouth Bank (as successor by merger to
AmSouth Bank of Alabama, successor by conversion of charter to AmSouth Bank
N.A.), as trustee under the Indenture until a successor is appointed thereunder,
and thereafter such successor trustee.
"Debentures" means the series of Debentures to be issued by the
Debenture Issuer under the Indenture and to be held by the Institutional
Trustee, a specimen certificate for such series of Debentures being
substantially in the form of Exhibit B.
"Delaware Trustee" has the meaning set forth in Section 5.2.
"Definitive Preferred Security Certificates" has the meaning set
forth in Section 9.4.
"Direction" by a Person means a written direction signed:
(a) if the Person is a natural person, by that Person; or
(b) in any other case, in the name of such Person by one or more
Authorized Officers of such Person.
"Distribution" means a distribution payable to Holders of Securities
in accordance with Section 6.1.
"DTC" means The Depository Trust Company, the initial Clearing
Agency.
4
<PAGE>
"Event of Default" in respect of the Securities means an Event of
Default (as defined in the Indenture) has occurred and is continuing in respect
of the Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in Section
10.4(b).
"Global Certificate" has the meaning set forth in Section 9.4.
"Holder" means a Person in whose name a Certificate representing a
Security is registered, such Person being a beneficial owner within the meaning
of the Business Trust Act.
"Indemnified Person" means a Company Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the Subordinated Indenture dated as of June 1,
1994, from the Debenture Issuer to the Debenture Trustee, and any Subordinated
Indenture supplemental thereto pursuant to which the Debentures are to be issued
(including, without limitation, the Supplemental Indenture No. 4, dated as of
__________, 199_ between the Debenture Issuer and the Debenture Trustee).
"Institutional Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 5.3.
"Institutional Trustee Account" has the meaning set forth in Section
3.8(c).
"Investment Company" means an investment company as defined in the
Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940,
as amended from time to time, or any successor legislation.
"Legal Action" has the meaning set forth in Section 3.6(g).
"Majority in liquidation amount of the Securities" means, except as
provided in the terms of the Preferred Securities or by the Trust Indenture Act,
Holder(s) of outstanding Securities voting together as a single class or, as the
context may require, Holders of outstanding Preferred Securities or Holders of
outstanding Common Securities voting separately as a class, who are the record
owners of more than 50% of the aggregate liquidation
5
<PAGE>
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined) of all outstanding Securities of
the relevant class.
"Ministerial Action" has the meaning set forth in Annex I.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person; provided that any
Officers' Certificate delivered with respect to compliance with a condition or
covenant provided for in this Declaration shall include:
(a) a statement that each officer signing such certificate has read
the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering such certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Paying Agent" has the meaning specified in Section 7.2.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Securities Guarantee" means the guarantee agreement,
dated as of __________, 199_, of the Sponsor in respect of the Preferred
Securities.
"Preferred Security" has the meaning specified in Section 7.1.
"Preferred Security Beneficial Owner" means, with respect to a Book
Entry Interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Clearing Agency, or on the books of a
Person maintaining an account with such
6
<PAGE>
Clearing Agency (directly as a Clearing Agency Participant or as an indirect
participant, in each case in accordance with the rules of such Clearing Agency).
"Preferred Security Certificate" means a certificate representing a
Preferred Security substantially in the form of Exhibit A-1.
"Purchase Agreement" means the Purchase Agreement for the offering
and sale of Preferred Securities in the form of Exhibit C.
"Quorum" means a majority of the Regular Trustees or, if there are
only two Regular Trustees, both of them.
"Regular Trustee" has the meaning set forth in Section 5.1.
"Related Party" means, with respect to the Sponsor, any direct or
indirect wholly owned subsidiary of the Sponsor or any other Person that owns,
directly or indirectly, 100% of the outstanding voting securities of the
Sponsor.
"Responsible Officer" means, with respect to the Institutional
Trustee, any officer within the Corporate Trust Office of the Institutional
Trustee, including any vice-president, any assistant vice-president, any
assistant secretary, the treasurer, any assistant treasurer or other officer of
the Corporate Trust Office of the Institutional Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's knowledge of
and familiarity with the particular subject.
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act.
"Securities" means the Common Securities and the Preferred
Securities.
"Securities Act" means the Securities Act of 1933, as amended from
time to time or any successor legislation.
"Special Event" has the meaning set forth in Annex I hereto.
"Sponsor" means Protective Life Corporation, a Delaware corporation,
or any successor entity in a merger, consolidation or amalgamation, in its
capacity as sponsor of the Trust.
7
<PAGE>
"Super Majority" has the meaning set forth in Section 2.6 (a) (ii).
"Tax Event" has the meaning set forth in Annex I hereto.
"10% in liquidation amount of the Securities" means, except as
provided in the terms of the Preferred Securities or by the Trust Indenture Act,
Holder(s) of outstanding Securities voting together as a single class or, as the
context may require, Holders of outstanding Preferred Securities or Holders of
outstanding Common Securities voting separately as a class, who are the record
owners of 10% or more of the aggregate liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus accrued
and unpaid Distributions to the date upon which the voting percentages are
determined) of all outstanding Securities of the relevant class.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation.
ARTICLE II.
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application. (a) This Declaration
is subject to the provisions of the Trust Indenture Act that are required to be
part of this Declaration and shall, to the extent applicable, be governed by
such provisions.
(b) The Institutional Trustee shall be the only Trustee which is a
Trustee for the purposes of the Trust Indenture Act.
8
<PAGE>
(c) If and to the extent that any provision of this Declaration
limits, qualifies or conflicts with the duties imposed by Section 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this Declaration
shall not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
SECTION 2.2. Lists of Holders of Securities. (a) The Sponsor and the
Regular Trustees on behalf of the Trust shall provide the Institutional Trustee
(i) within 14 days after each record date for payment of Distributions, a list,
in such form as the Institutional Trustee may reasonably require, of the names
and addresses of the Holders of the Securities ("List of Holders") as of such
record date, provided that neither the Sponsor nor the Regular Trustees, on
behalf of the Trust, shall be obligated to provide such List of Holders at any
time the List of Holders does not differ from the most recent List of Holders
given to the Institutional Trustee by the Sponsor and the Regular Trustees on
behalf of the Trust, and (ii) at any other time, within 30 days of receipt by
the Trust of a written request for a List of Holders as of a date no more than
14 days before such List of Holders is given to the Institutional Trustee. The
Institutional Trustee shall preserve, in as current a form as is reasonably
practicable, all information contained in Lists of Holders given to it or which
it receives in the capacity as Paying Agent (if acting in such capacity);
provided that the Institutional Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Institutional Trustee shall comply with its obligations
under Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3. Reports by the Institutional Trustee. Within 60 days
after May 15 of each year, the Institutional Trustee shall provide to the
Holders of the Preferred Securities such reports as are required by Section 313
of the Trust Indenture Act, if any, in the form and in the manner provided by
Section 313 of the Trust Indenture Act. The Institutional Trustee shall also
comply with the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4. Periodic Reports to Institutional Trustee. Each of the
Sponsor and the Regular Trustees, on behalf of the Trust, shall provide to the
Institutional Trustee and the Holders such documents, reports and information as
required by Section 314 (if any) of the Trust Indenture Act and the compliance
certificate required by such Section 314 of the Trust Indenture Act in the form,
in the manner and at the times required thereby.
SECTION 2.5. Evidence of Compliance with Conditions Precedent. Each
of the Sponsor and the Regular Trustees, on behalf of the Trust, shall provide
to the Institutional
9
<PAGE>
Trustee such evidence of compliance with any conditions precedent, if any,
provided for in this Declaration that relate to any of the matters set forth in
Section 314(c) of the Trust Indenture Act. Any certificate or opinion required
to be given by an officer pursuant to Section 314(c)(1) may be given in the form
of an Officers' Certificate.
SECTION 2.6. Events of Default; Waiver. (a) The Holders of a
Majority in liquidation amount of Preferred Securities may, by vote, on behalf
of the Holders of all of the Preferred Securities, waive any past Event of
Default in respect of the Preferred Securities and its consequences, provided
that, if the underlying Event of Default under the Indenture:
(i) is not waivable under the Indenture, the Event of Default under
the Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority in
principal amount of the holders of the Debentures (a "Super Majority") to
be waived under the Indenture, the Event of Default under the Declaration
may only be waived by the vote of the Holders of at least the proportion
in liquidation amount of the Preferred Securities that the relevant Super
Majority represents of the aggregate principal amount of the Debentures
outstanding.
The foregoing provisions of this Section 2.6(a) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such
default shall cease to exist, and any Event of Default with respect to the
Preferred Securities arising therefrom shall be deemed to have been cured, for
every purpose of this Declaration, but no such waiver shall extend to any
subsequent or other default or Event of Default with respect to the Preferred
Securities or impair any right consequent thereon. Any waiver by the Holders of
the Preferred Securities of an Event of Default with respect to the Preferred
Securities shall also be deemed to constitute a waiver by the Holders of the
Common Securities of any such Event of Default with respect to the Common
Securities for all purposes of this Declaration without any further act, vote,
or consent of the Holders of the Common Securities.
(b) The Holders of a Majority in liquidation amount of the Common
Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Indenture, except where the Holders of
the Common Securities are deemed to have waived such Event of Default
under the
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Declaration as provided below in this Section 2.6(b), the Event of Default
under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority to be waived,
except where the Holders of the Common Securities are deemed to have
waived such Event of Default under the Declaration as provided below in
this Section 2.6(b), the Event of Default under the Declaration may only
be waived by the vote of the Holders of at least the proportion in
liquidation amount of the Common Securities that the relevant Super
Majority represents of the aggregate principal amount of the Debentures
outstanding;
provided further, that each Holder of Common Securities will be deemed to have
waived any such Event of Default and all Events of Default with respect to the
Common Securities and its consequences until all Events of Default with respect
to the Preferred Securities have been cured, waived or otherwise eliminated, and
until such Events of Default have been so cured, waived or otherwise eliminated,
the Institutional Trustee will be deemed with respect to the Preferred
Securities to be acting solely on behalf of the Holders of the Preferred
Securities and only the Holders of the Preferred Securities will have the right
to direct the Institutional Trustee in accordance with the terms of the
Securities. The foregoing provisions of this Section 2.6(b) shall be in lieu of
Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such
Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby
expressly excluded from this Declaration and the Securities, as permitted by the
Trust Indenture Act. Subject to the foregoing provisions of this Section 2.6(b),
upon such waiver, any such default shall cease to exist and any Event of Default
with respect to the Common Securities arising therefrom shall be deemed to have
been cured for every purpose of this Declaration, but no such waiver shall
extend to any subsequent or other default or Event of Default with respect to
the Common Securities or impair any right consequent thereon.
(c) A waiver of an Event of Default under the Indenture by the
Institutional Trustee at the direction of the Holders of the Preferred
Securities constitutes a waiver of the corresponding Event of Default with
respect to the Preferred Securities under this Declaration. Any waiver of an
Event of Default under the Indenture by the Institutional Trustee at the
direction of the Holders of the Preferred Securities shall also be deemed to
constitute a waiver by the Holders of the Common Securities of the corresponding
Event of Default under this Declaration with respect to the Common Securities
for all purposes of this Declaration without further act, vote or consent of the
Holders of the Common Securities. The foregoing provisions of this Section
2.6(c) shall be in lieu of Section 316(a)(1)(B) of the Trust Indenture Act and
such Section 316(a)(1)(B) of the Trust Indenture Act is hereby expressly
excluded from this Declaration and the Securities, as permitted by the Trust
Indenture Act.
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SECTION 2.7. Event of Default; Notice. (a) The Institutional Trustee
shall, within 90 days after the occurrence of an Event of Default, transmit by
mail, first class postage prepaid, to the Holders of the Securities, notices of
all defaults with respect to the Securities actually known to a Responsible
Officer of the Institutional Trustee, unless such defaults have been cured
before the giving of such notice (the term "defaults" for the purposes of this
Section 2.7 being hereby defined to be an Event of Default as defined in the
Indenture, not including any periods of grace provided for therein and
irrespective of the giving of any notice provided therein); provided that,
except with respect to a default in the payment of principal of (or premium, if
any) or interest on any of the Debentures or in the payment of any sinking fund
installment established for the Debentures, the Institutional Trustee shall be
protected in withholding such notice if and so long as a Responsible Officer of
the Institutional Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of the Securities.
(b) The Institutional Trustee shall not be deemed to have knowledge
of any default except:
(i) a default under Sections 5.1 or 5.3 of the Indenture; or
(ii) any default as to which the Institutional Trustee shall have
received written notice or of which a Responsible Officer of the
Institutional Trustee charged with the administration of the Declaration
shall have actual knowledge.
ARTICLE III.
ORGANIZATION
SECTION 3.1. Name. The Trust is named "PLC Capital Trust II," as
such name may be modified from time to time by the Regular Trustees following
written notice to the Holders of Securities and the filing of a certificate of
amendment under the Business Trust Act. The Trust's activities may be conducted
under the name of the Trust or any other name deemed advisable by the Regular
Trustees.
SECTION 3.2. Office. The address of the principal office of the
Trust is 2801 Highway 280 South, Birmingham, Alabama 35223. On ten Business
Days' written notice to the Holders of Securities, the Regular Trustees may
designate another principal office.
SECTION 3.3. Purpose. The exclusive purposes and functions of the
Trust are
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(i) issuing the Preferred Securities and the Common Securities representing
undivided beneficial interests in the assets of the Trust, (ii) investing the
gross proceeds of the Securities in the Debentures and (iii) engaging in only
those other activities necessary or incidental thereto. The Trust shall not
borrow money, issue debt or reinvest proceeds derived from investments, pledge
any of its assets, or otherwise undertake (or permit to be undertaken) any
activity that would cause the Trust not to be classified for United States
federal income tax purposes as a grantor trust.
The Trustees, the Sponsor and the Holders of the Preferred
Securities and Common Securities (by their acceptance of such Securities) agree
not to take any position for United States federal income tax purposes which is
contrary to the classification of the Trust as a grantor trust.
SECTION 3.4. Authority. Subject to the limitations provided in this
Declaration and to the specific duties of the Institutional Trustee, the Regular
Trustees shall have exclusive and complete authority to carry out the purposes
of the Trust. An action taken by the Regular Trustees in accordance with their
powers shall constitute the act of and serve to bind the Trust and an action
taken by the Institutional Trustee on behalf of the Trust in accordance with its
powers shall constitute the act of and serve to bind the Trust. In dealing with
the Trustees acting on behalf of the Trust, no person shall be required to
inquire into the authority of the Trustees to bind the Trust. Persons dealing
with the Trust are entitled to rely conclusively on the power and authority of
the Trustees as set forth in this Declaration.
SECTION 3.5. Title to Property of the Trust. Except as provided in
Sec tion 3.8 with respect to the Debentures and the Institutional Trustee
Account or as otherwise provided in this Declaration, legal title to all assets
of the Trust shall be vested in the Trust. The Holders shall not have legal
title to any part of the assets of the Trust, but shall have an undivided
beneficial interest in the assets of the Trust.
SECTION 3.6. Powers and Duties of the Regular Trustees. The Regular
Trustees shall have the exclusive power, duty and authority to cause the Trust
to engage in the following activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that
the Trust may issue no more than one series of Preferred Securities and no
more than one series of Common Securities, and, provided further, that
there shall be no interests in the Trust other than the Securities, and
the issuance of Securities shall be limited to a simultaneous issuance of
both Preferred Securities and Common Securities on the Closing Date;
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(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission the registration
statement on Form S-3 prepared by the Sponsor, including any
amendments thereto, pertaining to the Preferred Securities;
(ii) execute and file any documents prepared by the Sponsor,
or take any acts as determined by the Sponsor to be necessary or
advisable in order to qualify or register all or part of the
Preferred Securities in any State in which the Sponsor has
determined to qualify or register such Preferred Securities for
sale;
(iii) execute and file an application, prepared by the
Sponsor, to the New York Stock Exchange, Inc. or any other national
stock exchange or the Nasdaq Stock Market's National Market for
listing upon notice of issuance of any Preferred Securities pursuant
to Section 3.8;
(iv) execute and file with the Commission a registration
statement on Form 8-A, including any amendments thereto, prepared by
the Sponsor, relating to the registration of the Preferred
Securities under Section 12(b) of the Exchange Act; and
(v) execute and enter into the Purchase Agreement providing
for the sale of the Preferred Securities;
(c) to acquire the Debentures with the proceeds of the sale of the
Preferred Securities and the Common Securities; provided, however, that
the Regular Trustees shall cause legal title to the Debentures to be held
of record in the name of the Institutional Trustee for the benefit of the
Holders of the Preferred Securities and the Holders of Common Securities
pursuant to Section 3.8;
(d) to give the Sponsor and the Institutional Trustee prompt written
notice of the occurrence of a Tax Event; provided that the Regular
Trustees shall consult with the Sponsor and the Institutional Trustee
before taking or refraining from taking any Ministerial Action in relation
to a Tax Event;
(e) to establish a record date with respect to all actions to be
taken hereunder that require a record date to be established, including
and with respect to, for the purposes of Section 316(c) of the Trust
Indenture Act, Distributions, voting rights,
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redemptions and exchanges, and to issue relevant notices to the Holders of
Preferred Securities and Holders of Common Securities as to such actions
and applicable record dates;
(f) to take all actions and perform such duties as may be required
of the Regular Trustees pursuant to the terms of the Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate, resort
to legal action, or otherwise adjust claims or demands of or against the
Trust ("Legal Action"), unless pursuant to Section 3.8(e), the
Institutional Trustee has the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors,
and consultants and pay reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's obligations under
the Trust Indenture Act;
(j) to give the certificate required by Section 314(a)(4) of the
Trust Indenture Act to the Institutional Trustee, which certificate may be
executed by any Regular Trustee;
(k) to incur expenses that are necessary, appropriate, convenient or
incidental to carry out any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar and
transfer agent for the Securities;
(m) to give prompt written notice to the Holders of the Securities
of any notice received from the Debenture Issuer of its election to defer
payments of interest on the Debentures by extending the interest payment
period under the Indenture;
(n) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of
the State of Delaware and of each other jurisdiction in which such
existence is necessary to protect the limited liability of the Holders of
the Preferred Securities or to enable the Trust to effect the purposes for
which the Trust was created;
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(o) to take any action, not inconsistent with this Declaration or
with applicable law, that the Regular Trustees determine in their
discretion to be necessary or desirable in carrying out the activities of
the Trust as set out in this Section 3.6, including, but not limited to:
(i) causing the Trust not to be deemed to be an Investment
Company required to be registered under the Investment Company Act;
(ii) causing the Trust to continue to be classified for United
States federal income tax purposes as a grantor trust; and
(iii) cooperating with the Debenture Issuer to ensure that the
Debentures will be treated as indebtedness of the Debenture Issuer
for United States federal income tax purposes,
provided that such action does not adversely affect the interests of the
Holders;
(p) to take all action necessary to cause all applicable tax returns
and tax information reports that are required to be filed with respect to
the Trust to be duly prepared and filed by the Regular Trustees, on behalf
of the Trust; and
(q) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing.
The Regular Trustees must exercise the powers set forth in this
Section 3.6 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Regular Trustees shall not take any
action that is inconsistent with the purposes and functions of the Trust set
forth in Section 3.3.
Subject to this Section 3.6, the Regular Trustees shall have none of
the powers or the authority of the Institutional Trustee set forth in Section
3.8.
Any expenses incurred by the Regular Trustees pursuant to this
Section 3.6 shall be reimbursed by the Debenture Issuer.
SECTION 3.7. Prohibition of Actions by the Trust and the Trustees.
(a) The Trust shall not, and the Trustees (including the Institutional Trustee)
shall not, engage in any activity other than as required or authorized by this
Declaration. In particular, the Trust shall not and the Trustees (including the
Institutional Trustee) shall cause the Trust not to:
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(i) invest any proceeds received by the Trust from holding the
Debentures, but shall distribute all such proceeds to Holders of
Securities pursuant to the terms of this Declaration and of the
Securities;
(ii) acquire any assets other than as expressly provided herein;
(iii) possess Trust property for other than a Trust purpose as set
forth in Section 3.3;
(iv) make any loans or incur any indebtedness other than loans
represented by the Debentures;
(v) possess any power or otherwise act in such a way as to vary the
Trust assets or the terms of the Securities in any way whatsoever;
(vi) issue any securities or other evidences of beneficial ownership
of, or beneficial interest in, the Trust other than the Securities; or
(vii) other than as provided in this Declaration (including, without
limitation, Annex I), (A) direct the time, method and place of exercising
any trust or power conferred upon the Debenture Trustee with respect to
the Debentures, (B) waive any past default under the Indenture, (C)
exercise any right to rescind or annul any declaration that the principal
of all the Debentures shall be due and payable, or (D) consent to any
amendment, modification or termination of the Indenture or the Debentures
where such consent shall be required unless the Trust shall have received
an opinion of nationally recognized tax counsel to the effect that such
modification will not cause more than an insubstantial risk that for
United States federal income tax purposes the Trust will be classified as
other than a grantor trust as a result of such action.
SECTION 3.8. Powers and Duties of the Institutional Trustee. (a) The
legal title to the Debentures shall be owned by and held of record in the name
of the Institutional Trustee in trust for the benefit of the Holders of the
Securities. The right, title and interest of the Institutional Trustee to the
Debentures shall vest automatically in each Person who may hereafter be
appointed as Institutional Trustee in accordance with Section 5.6. Such vesting
and cessation of title shall be effective whether or not conveyancing documents
with regard to the Debentures have been executed and delivered.
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(b) The Institutional Trustee shall not transfer its right, title
and interest in the Debentures to the Regular Trustees or to the Delaware
Trustee (if the Institutional Trustee does not also act as Delaware Trustee).
(c) The Institutional Trustee shall:
(i) establish and maintain a segregated non-interest bearing
trust account (the "Institutional Trustee Account") in the name of
and under the exclusive control of the Institutional Trustee on
behalf of the Holders of the Securities and, upon the receipt of
payments of funds made in respect of the Debentures held by the
Institutional Trustee, deposit such funds into the Institutional
Trustee Account and make payments to the Holders of the Preferred
Securities and Holders of the Common Securities from the
Institutional Trustee Account in accordance with Section 6.1. Funds
in the Institutional Trustee Account shall be held uninvested until
disbursed in accordance with this Declaration. The Institutional
Trustee Account shall be an account that is maintained with a
banking institution the rating on whose long-term unsecured
indebtedness is at least equal to the rating assigned to the
Preferred Securities by a "nationally recognized statistical rating
organization," as that term is defined for purposes of Rule
436(g)(2) under the Securities Act;
(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect the redemption of the Preferred
Securities and the Common Securities pursuant to this Declaration
(including, without limitation, Annex I) to the extent the
Debentures are redeemed or mature; and
(iii) upon written notice of distribution issued by the
Regular Trustees in accordance with the terms of the Securities,
engage in such ministerial activities as shall be necessary or
appropriate to effect the distribution of the Debentures to Holders
of Securities upon the occurrence of certain special events (as may
be defined in the terms of the Securities) arising from a change in
law or a change in legal interpretation or other specified
circumstances pursuant to the terms of the Securities.
(d) The Institutional Trustee shall take all actions and perform
such duties as may be specifically required of the Institutional Trustee
pursuant to the terms of the Securities.
(e) The Institutional Trustee shall take any Legal Action which
arises out of or in connection with an Event of Default of which a Responsible
Officer of the Institutional
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Trustee has actual knowledge of the Institutional Trustee's duties and
obligations under this Declaration or the Trust Indenture Act.
(f) The Institutional Trustee shall not resign as a Trustee unless
either:
(i) the Trust has been completely liquidated and the proceeds
of the liquidation distributed to the Holders of Securities pursuant
to the terms of the Securities; or
(ii) a Successor Institutional Trustee (as defined in Section
5.6) has been appointed and has accepted that appointment in
accordance with Section 5.6.
(g) The Institutional Trustee shall have the legal power to exercise
all of the rights, powers and privileges of a holder of Debentures under the
Indenture and, if an Event of Default actually known to a Responsible Officer of
the Institutional Trustee occurs and is continuing, the Institutional Trustee
shall, for the benefit of Holders of the Securities, enforce its rights as
holder of the Debentures subject to the rights of the Holders pursuant to the
terms of such Securities.
(h) Subject to this Section 3.8, the Institutional Trustee shall
have none of the duties, liabilities, powers or the authority of the Regular
Trustees set forth in Section 3.6.
The Institutional Trustee must exercise the powers set forth in this
Section 3.8 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Institutional Trustee shall not take
any action that is inconsistent with the purposes and functions of the Trust set
out in Section 3.3.
SECTION 3.9. Certain Duties and Responsibilities of the
Institutional Trustee. (a) The Institutional Trustee, before the occurrence of
any Event of Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Declaration and no implied covenants shall be read into this
Declaration against the Institutional Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.6) of which a
Responsible Officer of the Institutional Trustee has actual knowledge, the
Institutional Trustee shall exercise such of the rights and powers vested in it
by this Declaration, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
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(b) No provision of this Declaration shall be construed to relieve
the Institutional Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Institutional Trustee
shall be determined solely by the express provisions of this
Declaration and the Institutional Trustee shall not be liable except
for the performance of such duties and obligations as are
specifically set forth in this Declaration, and no implied covenants
or obligations shall be read into this Declaration against the
Institutional Trustee; and
(B) in the absence of bad faith on the part of the
Institutional Trustee, the Institutional Trustee may conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Institutional Trustee and conforming to the
requirements of this Declaration; but in the case of any such
certificates or opinions that by any provision hereof are
specifically required to be furnished to the Institutional Trustee,
the Institutional Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this
Declaration;
(ii) the Institutional Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Institutional
Trustee, unless it shall be proved that the Institutional Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Institutional Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of not less than a Majority in
liquidation amount of the Securities relating to the time, method and
place of conducting any proceeding for any remedy available to the
Institutional Trustee, or exercising any trust or power conferred upon the
Institutional Trustee under this Declaration;
(iv) no provision of this Declaration shall require the
Institutional Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in
the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Declaration or indemnity
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reasonably satisfactory to the Institutional Trustee against such risk or
liability is not reasonably assured to it;
(v) the Institutional Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and the
Institutional Trustee Account shall be to deal with such property in a
similar manner as the Institutional Trustee deals with similar property
for its own account, subject to the protections and limitations on
liability afforded to the Institutional Trustee under this Declaration and
the Trust Indenture Act;
(vi) the Institutional Trustee shall have no duty or liability for
or with respect to the value, genuineness, existence or sufficiency of the
Debentures or the payment of any taxes or assessments levied thereon or in
connection therewith;
(vii) the Institutional Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree with the
Sponsor. Money held by the Institutional Trustee need not be segregated
from other funds held by it except in relation to the Institutional
Trustee Account maintained by the Institutional Trustee pursuant to
Section 3.8(c)(i) and except to the extent otherwise required by law; and
(viii) the Institutional Trustee shall not be responsible for
monitoring the compliance by the Regular Trustees or the Sponsor with
their respective duties under this Declaration, nor shall the
Institutional Trustee be liable for any default or misconduct of the
Regular Trustees or the Sponsor.
SECTION 3.10. Certain Rights of Institutional Trustee. (a) Subject
to the provisions of Section 3.9:
(i) the Institutional Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and
to have been signed, sent or presented by the proper party or parties;
(ii) any direction or act of the Sponsor or the Regular Trustees
contemplated by this Declaration shall be sufficiently evidenced by a
Direction or an Officers' Certificate;
(iii) whenever, in the administration of this Declaration, the
Institutional Trustee shall deem it desirable that a matter be proved or
established before taking,
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suffering or omitting any action hereunder, the Institutional Trustee
(unless other evidence is herein specifically prescribed) may, in the
absence of bad faith on its part, request and conclusively rely upon an
Officers' Certificate which, upon receipt of such request, shall be
promptly delivered by the Sponsor or the Regular Trustees;
(iv) the Institutional Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or securities
laws) or any rerecording, refiling or registration thereof;
(v) the Institutional Trustee may consult with counsel or other
experts and the advice or opinion of such counsel and experts with respect
to legal matters or advice within the scope of such experts' area of
expertise shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good
faith and in accordance with such advice or opinion, it being understood
that such counsel may be counsel to the Sponsor or any of its Affiliates,
and may include any of its employees. The Institutional Trustee shall have
the right at any time to seek instructions concerning the administration
of this Declaration from any court of competent jurisdiction;
(vi) the Institutional Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration at
the request or direction of any Holder, unless such Holder shall have
provided to the Institutional Trustee security and indemnity, reasonably
satisfactory to the Institutional Trustee, against the costs, expenses
(including attorneys' fees and expenses and the expenses of the
Institutional Trustee's agents, nominees or custodians) and liabilities
that might be incurred by it in complying with such request or direction,
including such reasonable advances as may be requested by the
Institutional Trustee provided, that, nothing contained in this Section
3.10(a)(vi) shall be taken to relieve the Institutional Trustee, upon the
occurrence of an Event of Default, of its obligation to exercise the
rights and powers vested in it by this Declaration;
(vii) the Institutional Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Institutional Trustee, in
its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit;
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(viii) the Institutional Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents, custodians, nominees or attorneys and the Institutional
Trustee shall not be responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care by it hereunder;
(ix) any action taken by the Institutional Trustee or its agents
hereunder shall bind the Trust and the Holders of the Securities, and the
signature of the Institutional Trustee or its agents alone shall be
sufficient and effective to perform any such action and no third party
shall be required to inquire as to the authority of the Institutional
Trustee to so act or as to its compliance with any of the terms and
provisions of this Declaration, both of which shall be conclusively
evidenced by the Institutional Trustee's or its agent's taking such
action;
(x) whenever in the administration of this Declaration the
Institutional Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Institutional Trustee (i) may request instructions from the
Holders of the Securities which instructions may only be given by the
Holders of the same proportion in liquidation amount of the Securities as
would be entitled to direct the Institutional Trustee under the terms of
the Securities in respect of such remedy, right or action, (ii) may
refrain from enforcing such remedy or right or taking such other action
until such instructions are received, and (iii) shall be protected in
conclusively relying on or acting in accordance with such instructions;
and
(xi) except as otherwise expressly provided by this Declaration, the
Institutional Trustee shall not be under any obligation to take any action
that is discretionary under the provisions of this Declaration.
(b) No provision of this Declaration shall be deemed to impose any
duty or obligation on the Institutional Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Institutional Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Institutional
Trustee shall be construed to be a duty.
SECTION 3.11. Delaware Trustee. Notwithstanding any other provision
of this Declaration other than Section 5.2, the Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities of the Regular Trustees or the Institutional Trustee
described in this Declaration. Except as set forth
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in Section 5.2, the Delaware Trustee shall be a Trustee for the sole and limited
purpose of fulfilling the requirements of Section 3807 of the Business Trust
Act.
SECTION 3.12. Execution of Documents. Unless otherwise determined by
the Regular Trustees, and except as otherwise required by the Business Trust
Act, any Regular Trustee is authorized to execute on behalf of the Trust any
documents that the Regular Trustees have the power and authority to execute
pursuant to Section 3.6; provided that, the registration statement referred to
in Section 3.6(b)(i), including any amendments thereto, shall be signed by all
of the Regular Trustees.
SECTION 3.13. Not Responsible for Recitals or Issuance of
Securities. The recitals contained in this Declaration and the Securities shall
be taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as to
the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Declaration or the Securities.
SECTION 3.14. Duration of Trust. The Trust, unless terminated
earlier pursuant to the provisions of Article VIII hereof, shall have existence
for fifty-five (55) years from the issuance of the Debentures.
SECTION 3.15. Mergers. (a) The Trust may not consolidate,
amalgamate, merge with or into, or be replaced by, or convey, transfer or lease
its properties and assets substantially as an entirety to any corporation or
other body, except as described in Sections 3.15(b) and (c).
(b) The Trust may, with the consent of the Regular Trustees (or, if
there are more than two, a majority of the Regular Trustees) and without the
consent of the Holders of the Securities, the Delaware Trustee or the
Institutional Trustee, consolidate, amalgamate, merge with or into, or be
replaced by a trust organized as such under the laws of any State; provided
that:
(i) such successor entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of the Trust
under the Securities; or
(B) substitutes for the Preferred Securities other securities
having substantially the same terms as the Preferred Securities (the
"Successor Securities") so long as the Successor Securities rank the
same as the Preferred
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Securities rank with respect to Distributions and payments upon
liquidation, redemption and otherwise;
(ii) the Debenture Issuer expressly acknowledges a trustee of the
Successor Entity that possesses the same powers and duties as the
Institutional Trustee as the Holder of the Debentures;
(iii) the Preferred Securities or any Successor Securities are
listed, or any Successor Securities will be listed upon notification of
issuance, on any national securities exchange or with another organization
on which the Preferred Securities are then listed or quoted;
(iv) such merger, consolidation, amalgamation or replacement does
not cause the Preferred Securities (including any Successor Securities) to
be downgraded by any nationally recognized statistical rating
organization;
(v) such merger, consolidation, amalgamation or replacement does not
adversely affect the rights, preferences and privileges of the Holders of
the Securities (including any Successor Securities) in any material
respect (other than with respect to any dilution of such Holders'
interests in the Preferred Securities as a result of such merger,
consolidation, amalgamation or replacement);
(vi) such Successor Entity has a purpose identical to that of the
Trust;
(vii) prior to such merger, consolidation, amalgamation or
replacement, the Sponsor has received an opinion of a nationally
recognized independent counsel to the Trust experienced in such matters to
the effect that:
(A) such merger, consolidation, amalgamation or replacement
does not adversely affect the rights, preferences and privileges of
the Holders of the Securities (including any Successor Securities)
in any material respect (other than with respect to any dilution of
the Holders' interest in the new entity); and
(B) following such merger, consolidation, amalgamation or
replacement, neither the Trust nor the Successor Entity will be
required to register as an Investment Company;
(C) following such merger, consolidation, amalgamation or
replacement, the Trust (or the Successor Entity) will continue to be
classified as a grantor trust for United States federal income tax
purposes; and
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(viii) the Sponsor guarantees the obligations of such Successor
Entity under the Successor Securities at least to the extent provided by
the Preferred Securities Guarantee.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except
with the consent of Holders of 100% in liquidation amount of the Securities,
consolidate, amalgamate, merge with or into, or be replaced by any other entity
or permit any other entity to consolidate, amalgamate, merge with or into, or
replace it if such consolidation, amalgamation, merger or replacement would
cause the Trust or Successor Entity to be classified as other than a grantor
trust for United States federal income tax purposes.
ARTICLE IV.
SPONSOR
SECTION 4.1. Sponsor's Purchase of Common Securities. On the Closing
Date at the same time as the Preferred Securities are sold, the Sponsor will
purchase all of the Common Securities issued by the Trust, in an amount at least
equal to 3% of the aggregate capital of the Trust after giving effect to such
sale of Preferred Securities.
SECTION 4.2. Responsibilities of the Sponsor. In connection with the
issue and sale of the Preferred Securities, the Sponsor shall have the exclusive
right and responsibility to engage in the following activities:
(a) to prepare for filing by the Trust with the Commission a
registration statement on Form S-3 in relation to the Preferred
Securities, including any amendments thereto;
(b) to determine the States in which to take appropriate action to
qualify or register for sale all or part of the Preferred Securities and
to do any and all such acts, other than actions which must be taken by the
Trust, advise the Trust of actions it must take, and prepare for execution
and filing any documents to be executed and filed by the Trust, as the
Sponsor deems necessary or advisable in order to comply with the
applicable laws of any such States;
(c) to prepare for filing by the Trust an application to the New
York Stock Exchange or any other national stock exchange or the Nasdaq
National Market for listing upon notice of issuance of any Preferred
Securities;
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(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the
Preferred Securities under Section 12(b) of the Exchange Act, including
any amendments thereto; and
(e) to negotiate the terms of the Purchase Agreement providing for
the sale of the Preferred Securities.
ARTICLE V.
TRUSTEES
SECTION 5.1. Number of Trustees. The number of Trustees initially
shall be three (3), and:
(a) at any time before the issuance of any Securities, the Sponsor
may, by written instrument, increase or decrease the number of Trustees;
and
(b) after the issuance of any Securities, the number of Trustees may
be increased or decreased by vote of the Holders of a Majority in
liquidation amount of the Common Securities voting as a class at a meeting
of the Holders of the Common Securities; provided, however, that the
number of Trustees shall in no event be less than two (2); provided
further that (1) one Trustee meets the requirements of Sections 5.2(a) or
(b); (2) there shall be at least one Trustee who is an employee or officer
of, or is affiliated with, the Sponsor (a "Regular Trustee"); and (3) one
Trustee shall be the Institutional Trustee for so long as this Declaration
is required to qualify as an indenture under the Trust Indenture Act, and
such Trustee may also serve as Delaware Trustee if it meets the applicable
requirements.
SECTION 5.2. Delaware Trustee. If required by the Business Trust
Act, one Trustee (the "Delaware Trustee") shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) if not a natural person, an entity which has its principal place
of business in the State of Delaware, and otherwise meets the requirements
of applicable law, provided that, if the Institutional Trustee has its
principal place of business in the State of Delaware and otherwise meets
the requirements of applicable law, then the Institutional Trustee shall
also be the Delaware Trustee and Section 3.11 shall have no application.
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(c) The initial Delaware Trustee shall be:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
SECTION 5.3. Institutional Trustee; Eligibility. (a) There shall at
all times be one Trustee which shall act as Institutional Trustee and which
shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation or Person permitted by the
Commission to act as an institutional trustee under the Trust Indenture
Act, authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination by Federal,
State, Territorial or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to
the requirements of the supervising or examining authority referred to
above, then for the purposes of this Section 5.3(a)(ii), the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Institutional Trustee shall cease to be
eligible to so act under Section 5.3(a), the Institutional Trustee shall
immediately resign in the manner and with the effect set forth in Section
5.6(c).
(c) If the Institutional Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Institutional Trustee and the Holder of the Common Securities
(as if it were the obligor referred to in Section 310(b) of the Trust Indenture
Act) shall in all respects comply with the provisions of Section 310(b) of the
Trust Indenture Act.
(d) The Preferred Securities Guarantee shall be deemed to be
specifically described in this Declaration for purposes of clause (i) of the
first provision contained in Section 310(b) of the Trust Indenture Act.
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(e) The initial Institutional Trustee shall be:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
SECTION 5.4. Certain Qualifications of Regular Trustees and Delaware
Trustee Generally. Each Regular Trustee and the Delaware Trustee (unless the
Institutional Trustee also acts as Delaware Trustee) shall be either a natural
person who is at least 21 years of age or a legal entity that shall act through
one or more Authorized Officers.
SECTION 5.5. Regular Trustees. The initial Regular Trustees shall
be:
Richard J. Bielen
c/o Protective Life Corporation
2801 Highway 280 South
Birmingham, Alabama 35223
Jerry W. DeFoor
c/o Protective Life Corporation
2801 Highway 280 South
Birmingham, Alabama 35223
(a) Except as expressly set forth in this Declaration and except if
a meeting of the Regular Trustees is called with respect to any matter over
which the Regular Trustees have power to act, any power of the Regular Trustees
may be exercised by, or with the consent of, any one such Regular Trustee.
(b) As more specifically provided in Section 5.10, a Regular Trustee
may, by power of attorney consistent with applicable law, delegate to any other
natural person over the age of 21 his or her power for the purposes of signing
any documents which the Regular Trustees have power and authority to cause the
Trust to execute pursuant to Section 3.6.
SECTION 5.6. Appointment, Removal and Resignation of Trustees. (a)
subject to Section 5.6(b), Trustees may be appointed or removed without cause at
any time:
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(i) until the issuance of any Securities, by written instrument
executed by the Sponsor; and
(ii) after the issuance of any Securities, by vote of the Holders of
a Majority in liquidation amount of the Common Securities voting as a
class at a meeting of the Holders of the Common Securities.
(b) (i) The Trustee that acts as Institutional Trustee shall not be
removed in accordance with Section 5.6(a) until a Successor Institutional
Trustee (a "Successor Institutional Trustee") has been appointed and has
accepted such appointment by written instrument executed by such Successor
Institutional Trustee and delivered to the Regular Trustees and the
Sponsor; and
(ii) the Trustee that acts as Delaware Trustee shall not be removed
in accordance with this Section 5.6(a) until a successor Trustee
possessing the qualifications to act as Delaware Trustee under Sections
5.2 and 5.4 (a "Successor Delaware Trustee") has been appointed and has
accepted such appointment by written instrument executed by such Successor
Delaware Trustee and delivered to the Regular Trustees and the Sponsor.
(c) A Trustee appointed to office shall hold office until his
successor shall have been appointed or until his death, removal or resignation.
Any Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing signed by such Trustee and delivered to
the Sponsor and the Trust, which resignation shall take effect upon such
delivery or upon such later date as is specified therein; provided, however,
that:
(i) No such resignation of the Trustee that acts as the
Institutional Trustee shall be effective:
(A) until a Successor Institutional Trustee has been appointed
and has accepted such appointment by instrument executed by such
Successor Institutional Trustee and delivered to the Trust, the
Sponsor and the resigning Institutional Trustee; or
(B) until the assets of the Trust have been completely
liquidated and the proceeds thereof distributed to the holders of
the Securities; and
(ii) no such resignation of the Trustee that acts as the Delaware
Trustee shall be effective until a Successor Delaware Trustee has been
appointed and has accepted such
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appointment by instrument executed by such Successor Delaware Trustee and
delivered to the Trust, the Sponsor and the resigning Delaware Trustee.
(d) The Holders of the Common Securities shall use their best
efforts to promptly appoint a Successor Delaware Trustee or Successor
Institutional Trustee, as the case may be, if the Institutional Trustee or the
Delaware Trustee delivers an instrument of resignation in accordance with this
Section 5.6.
(e) If no Successor Institutional Trustee or Successor Delaware
Trustee shall have been appointed and accepted appointment as provided in this
Section 5.6 within 60 days after delivery to the Sponsor and the Trust of an
instrument of resignation, the resigning Institutional Trustee or Delaware
Trustee, as applicable, may petition any court of competent jurisdiction for
appointment of a Successor Institutional Trustee or Successor Delaware Trustee.
Such court may thereupon, after prescribing such notice, if any, as it may deem
proper and prescribe, appoint a Successor Institutional Trustee or Successor
Delaware Trustee, as the case may be.
(f) No Institutional Trustee or Delaware Trustee shall be liable for
the acts or omissions to act of any Successor Institutional Trustee or Successor
Delaware Trustee, as the case may be.
SECTION 5.7. Vacancies Among Trustees. If a Trustee ceases to hold
office for any reason and the number of Trustees is not reduced pursuant to
Section 5.1, or if the number of Trustees is increased pursuant to Section 5.1,
a vacancy shall occur. A resolution certifying the existence of such vacancy by
the Regular Trustees (or, if there are more than two, a majority of the Regular
Trustees) shall be conclusive evidence of the existence of such vacancy. Any
such vacancy shall be filled with a Trustee appointed in accordance with Section
5.6.
SECTION 5.8. Effect of Vacancies. The death, resignation,
retirement, removal, bankruptcy, dissolution, liquidation, incompetence or
incapacity to perform the duties of a Trustee shall not operate to annul the
Trust. Whenever a vacancy in the number of Regular Trustees shall occur, until
such vacancy is filled by the appointment of a Regular Trustee in accordance
with Section 5.6, the Regular Trustees in office, regardless of their number,
shall have all the powers granted to the Regular Trustees and shall discharge
all the duties imposed upon the Regular Trustees by this Declaration.
SECTION 5.9. Meetings. If there is more than one Regular Trustee,
meetings of the Regular Trustees shall be held from time to time upon the call
of any Regular Trustee. Regular meetings of the Regular Trustees may be held at
a time and place fixed by resolution
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of the Regular Trustees. Notice of any in-person meetings of the Regular
Trustees shall be hand delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than 48 hours before
such meeting. Notice of any telephonic meetings of the Regular Trustees or any
committee thereof shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier) not less than 24
hours before such meeting. Notices shall contain a brief statement of the time,
place and anticipated purposes of the meeting. The presence (whether in person
or by telephone) of a Regular Trustee at a meeting shall constitute a waiver of
notice of such meeting except where a Regular Trustee attends a meeting for the
express purpose of objecting to the transaction of any activity on the ground
that the meeting has not been lawfully called or convened. Unless provided
otherwise in this Declaration, any action of the Regular Trustees may be taken
at a meeting by vote of a majority of the Regular Trustees present (whether in
person or by telephone) and eligible to vote with respect to such matter,
provided that a Quorum is present, or without a meeting by the unanimous written
consent of the Regular Trustees. In the event there is only one Regular Trustee,
any and all action of such Regular Trustee shall be evidenced by a written
consent of such Regular Trustee.
SECTION 5.10. Delegation of Power. (a) Any Regular Trustee may, by
power of attorney consistent with applicable law, delegate to any other natural
person over the age of 21 his or her power for the purpose of executing any
documents contemplated in Section 3.6, including any registration statement or
amendment thereto filed with the Commission, or making any other governmental
filing; and
(b) the Regular Trustees shall have power to delegate from time to
time to such of their number or to officers of the Trust the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Regular Trustees or otherwise as the Regular Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
SECTION 5.11. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Institutional Trustee or the Delaware
Trustee, as the case may be, may be merged or converted or with which either may
be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Institutional Trustee or the Delaware Trustee, as the
case may be, shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Institutional Trustee or
the Delaware Trustee, as the case may be, shall be the successor of the
Institutional Trustee or the Delaware Trustee, as the case may be, hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
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ARTICLE VI.
DISTRIBUTIONS
SECTION 6.1. Distributions. Holders shall receive Distributions (as
defined herein) in accordance with the applicable terms of the relevant Holder's
Securities. Distributions shall be made on the Preferred Securities and the
Common Securities in accordance with the preferences set forth in their
respective terms. If and to the extent that the Debenture Issuer makes a payment
of interest (including Compounded Interest (as defined in the Indenture) and
Additional Interest (as defined in the Indenture)), premium and/or principal on
the Debentures held by the Institutional Trustee (the amount of any such payment
being a "Payment Amount"), the Institutional Trustee shall and is directed, to
the extent funds are available for that purpose, to make a distribution (a
"Distribution") of such Payment Amount to Holders.
ARTICLE VII.
ISSUANCE OF SECURITIES
SECTION 7.1. General Provisions Regarding Securities. (a) The
Regular Trustees shall, on behalf of the Trust, issue one class of preferred
securities representing undivided beneficial interests in the assets of the
Trust having such terms as are set forth in Annex I (the "Preferred Securities")
and one class of common securities representing undivided beneficial interests
in the assets of the Trust having such terms as are set forth in Annex I (the
"Common Securities"). The Trust shall issue no securities or other interests in
the assets of the Trust other than the Preferred Securities and the Common
Securities.
(b) The Certificates shall be signed on behalf of the Trust by a
Regular Trustee. Such signature shall be the manual signature of any present or
any future Regular Trustee. In case any Regular Trustee of the Trust who shall
have signed any of the Securities shall cease to be such Regular Trustee before
the Certificates so signed shall be delivered by the Trust, such Certificates
nevertheless may be delivered as though the person who signed such Certificates
had not ceased to be such Regular Trustee; and any Certificate may be signed on
behalf of the Trust by such persons who, at the actual date of execution of such
Security, shall be the Regular Trustees of the Trust, although at the date of
the execution and delivery of the Declaration any such person was not such a
Regular Trustee. Certificates shall be printed, lithographed or engraved or may
be produced in any other manner as is reasonably acceptable to the Regular
Trustees, as evidenced by their execution thereof, and may have such letters,
numbers or other marks of identification or designation and such legends or
endorsements as
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the Regular Trustees may deem appropriate, or as may be required to comply with
any law or with any rule or regulation of any stock exchange on which Securities
may be listed, or to conform to usage.
(c) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(d) Upon issuance of the Securities as provided in this Declaration,
the Securities so issued shall be deemed to be validly issued, fully paid and
(subject to Section 10.1) non-assessable.
(e) Every Person, by virtue of having become a Holder or a Preferred
Security Beneficial Owner in accordance with the terms of this Declaration,
shall be deemed to have expressly assented and agreed to the terms of, and shall
be bound by, this Declaration.
SECTION 7.2. Paying Agent. In the event that the Preferred
Securities are not in book-entry only form, the Trust shall maintain in the
borough of Manhattan, The City of New York, State of New York, an office or
agency where the Preferred Securities may be presented for payment ("Paying
Agent"), and any such Paying Agent shall comply with Section 317(b) of the Trust
Indenture Act. The Trust may appoint the Paying Agent and may appoint one or
more additional paying agents in such other locations as it shall determine. The
term "Paying Agent" includes any such additional paying agent. The Trust may
change any Paying Agent without prior notice to any Holder. The Trust shall
notify the Institutional Trustee of the name and address of any Agent not a
party to this Declaration. If the Trust fails to appoint or maintain another
entity as Paying Agent, the Institutional Trustee shall act as such. The Trust
or any of its Affiliates may act as Paying Agent. The Institutional Trustee
shall initially act as Paying Agent for the Preferred Securities and the Common
Securities.
ARTICLE VIII.
TERMINATION OF TRUST
SECTION 8.1. Termination of Trust. (a) The Trust shall dissolve in
the earlier to occur of 55 years after the issuance of the Debentures or:
(i) upon the bankruptcy of the Sponsor;
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(ii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor or the revocation of the Sponsor's
charter and the expiration of 90 days after the date of revocation without
a reinstatement thereof;
(iii) upon the consent of a Majority in liquidation amount of the
Securities affected thereby voting together as a single class to dissolve
the Trust;
(iv) upon the entry of a decree of judicial dissolution of the
Holder of the Common Securities, the Sponsor or the Trust;
(v) when all of the Securities shall have been called for redemption
and the amounts necessary for redemption thereof shall have been paid to
the Holders, in each case in accordance with the terms of the Securities;
(vi) at the election of the Sponsor (which is wholly within its sole
discretion) at any time pursuant to which the Trust shall have been
dissolved in accordance with the terms of the Securities as set forth in
Annex I and all of the Debentures endorsed thereon shall have been
distributed to the Holders of Securities in exchange for all of the
Securities; or
(vii) before the issuance of any Securities, with the consent of all
of the Regular Trustees and the Sponsor.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a) and upon completion of the winding-up of the Trust
and payment of all liabilities of the Trust, the Trustees shall file a
certificate of cancellation with the Secretary of State of the State of Delaware
and the Trust shall terminate.
(c) The provisions of Article X shall survive the termination of the
Trust.
ARTICLE IX.
TRANSFER OF INTERESTS
SECTION 9.1. Transfer of Securities. (a) Securities may only be
transferred, in whole or in part, in accordance with the terms and conditions
set forth in this Declaration and in the terms of the Securities. Any transfer
or purported transfer of any Security not made in accordance with this
Declaration shall be null and void.
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(b) Subject to this Article IX, Preferred Securities shall be freely
transferable.
(c) Subject to this Article IX, the Sponsor and any Related Party
may only transfer Common Securities to the Sponsor or a Related Party of the
Sponsor; provided that, any such transfer is subject to the condition precedent
that the transferor obtain the written opinion of nationally recognized
independent counsel experienced in such matters that such transfer would not
cause more than an insubstantial risk that:
(i) the Trust would not continue to be classified for United States
federal income tax purposes as a grantor trust; and
(ii) the Trust would be an Investment Company or the transferee
would become an Investment Company.
SECTION 9.2. Transfer of Certificates. The Regular Trustees shall
provide for the registration of Certificates and of transfers of Certificates,
which will be effected without charge but only upon payment (with such indemnity
as the Regular Trustees may require) in respect of any tax or other government
charges that may be imposed in relation to it. Upon surrender for registration
of transfer of any Certificate, the Regular Trustees shall cause one or more new
Certificates to be issued in the name of the designated transferee or
transferees. Every Certificate surrendered for registration of transfer shall be
accompanied by a written instrument of transfer in form satisfactory to the
Regular Trustees duly executed by the Holder or such Holder's attorney duly
authorized in writing. Each Certificate surrendered for registration of transfer
shall be canceled by the Regular Trustees. A transferee of a Certificate shall
be entitled to the rights and subject to the obligations of a Holder hereunder
upon the receipt by such transferee of a Certificate. By acceptance of a
Certificate, each transferee shall be deemed to have agreed to be bound by this
Declaration.
SECTION 9.3. Deemed Security Holders. The Trustees may treat the
Person in whose name any Certificate shall be registered on the books and
records of the Trust as the sole holder of such Certificate and of the
Securities represented by such Certificate for purposes of receiving
Distributions and for all other purposes whatsoever and, accordingly, shall not
be bound to recognize any equitable or other claim to or interest in such
Certificate or in the Securities represented by such Certificate on the part of
any Person, whether or not the Trust shall have actual or other notice thereof.
SECTION 9.4. Book Entry Interests. Unless otherwise specified in the
terms of the Preferred Securities, the Preferred Securities Certificates, on
original issuance, will be issued in the form of one or more fully registered,
global Preferred Security Certificates (each a "Global Certificate"), to be
delivered to DTC, the initial Clearing Agency, by, or on behalf
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of, the Trust. Such Global Certificate(s) shall initially be registered on the
books and records of the Trust in the name of Cede & Co., the nominee of DTC,
and no Preferred Security Beneficial Owner will receive a definitive Preferred
Security Certificate representing such Preferred Security Beneficial Owner's
interests in such Global Certificate(s), except as provided in Section 9.7.
Unless and until definitive, fully registered Preferred Security Certificates
(the "Definitive Preferred Security Certificates") have been issued to the
Preferred Security Beneficial Owners pursuant to Section 9.7:
(a) the provisions of this Section 9.4 shall be in full force and
effect;
(b) the Trust and the Trustees shall be entitled to deal with the
Clearing Agency for all purposes of this Declaration (including the
payment of Distributions on the Global Certificate(s) and receiving
approvals, votes or consents hereunder) as the Holder of the Preferred
Securities and the sole holder of the Global Certificate(s) and shall have
no obligation to the Preferred Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.4 conflict
with any other provisions of this Declaration, the provisions of this
Section 9.4 shall control; and
(d) the rights of the Preferred Security Beneficial Owners shall be
exercised only through the Clearing Agency and shall be limited to those
established by law and agreements between such Preferred Security
Beneficial Owners and the Clearing Agency and/or the Clearing Agency
Participants and the Clearing Agency shall receive and transmit payments
of Distributions on the Global Certificates to such Clearing Agency
Participants. DTC will make book entry transfers among the Clearing Agency
Participants.
SECTION 9.5. Notices to Clearing Agency. Whenever a notice or other
communication to the Preferred Security Holders is required under this
Declaration, unless and until Definitive Preferred Security Certificates shall
have been issued to the Preferred Security Beneficial Owners pursuant to Section
9.7, the Regular Trustees shall give all such notices and communications
specified herein to be given to the Preferred Security Holders to the Clearing
Agency, and shall have no notice obligations to the Preferred Security
Beneficial Owners.
SECTION 9.6. Appointment of Successor Clearing Agency. If any
Clearing Agency elects to discontinue its services as securities depositary with
respect to the Preferred Securities, the Regular Trustees may, in their sole
discretion, appoint a successor Clearing Agency with respect to such Preferred
Securities.
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SECTION 9.7. Definitive Preferred Security Certificates. If:
(a) a Clearing Agency elects to discontinue its services as
securities depositary with respect to the Preferred Securities and a
successor Clearing Agency is not appointed within 90 days after such
discontinuance pursuant to Section 9.6; or
(b) the Regular Trustees elect after consultation with the Sponsor
to terminate the book entry system through the Clearing Agency with
respect to the Preferred Securities, then:
(c) Definitive Preferred Security Certificates shall be prepared by
the Regular Trustees on behalf of the Trust with respect to such Preferred
Securities; and
(d) upon surrender of the Global Certificate(s) by the Clearing
Agency, accompanied by registration instructions, the Regular Trustees
shall cause Definitive Preferred Security Certificates to be delivered to
Preferred Security Beneficial Owners in accordance with the instructions
of the Clearing Agency. Neither the Trustees nor the Trust shall be liable
for any delay in delivery of such instructions and each of them may
conclusively rely on and shall be protected in relying on, said
instructions of the Clearing Agency. The Definitive Preferred Security
Certificates shall be printed, lithographed or engraved or may be produced
in any other manner as is reasonably acceptable to the Regular Trustees,
as evidenced by their execution thereof, and may have such letters,
numbers or other marks of identification or designation and such legends
or endorsements as the Regular Trustees may deem appropriate, or as may be
required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on
which Preferred Securities may be listed, or to conform to usage.
SECTION 9.8. Mutilated, Destroyed, Lost or Stolen Certificates. If:
(a) any mutilated Certificates should be surrendered to the Regular
Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Regular Trustees such security
or indemnity as may be required by them to keep each of them harmless;
then, in the absence of notice that such Certificate shall have been acquired by
a bona fide purchaser, any Regular Trustee on behalf of the Trust shall execute
and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Certificate, a new Certificate of
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like denomination. In connection with the issuance of any new Certificate under
this Section 9.8, the Regular Trustees may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith. Any duplicate Certificate issued pursuant to this Section
shall constitute conclusive evidence of an ownership interest in the relevant
Securities, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
ARTICLE X.
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1. Liability. (a) Except as expressly set forth in this
Declaration, the Debentures, the Preferred Securities Guarantee, the Common
Securities Guarantee and the terms of the Securities, the Sponsor shall not be:
(i) personally liable for the return of any portion of the capital
contributions (or any return thereon) of the Holders of the Securities
which shall be made solely from assets of the Trust; or
(ii) required to pay to the Trust or to any Holder of Securities any
deficit upon dissolution of the Trust or otherwise.
(b) The Holder of the Common Securities shall be liable for all of
the debts and obligations of the Trust (other than with respect to the
Securities) to the extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the
Holders of the Preferred Securities shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
SECTION 10.2. Exculpation. (a) No Indemnified Person shall be
liable, responsible or accountable in damages or otherwise to the Trust or any
Covered Person for any loss, damage or claim incurred by reason of any act
performed or omission made by such Indemnified Person in good faith on behalf of
the Trust and in a manner such Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Indemnified Person by this
Declaration or by law, except that an Indemnified Person shall be liable for any
such loss, damage or claim incurred by reason of such Indemnified Person's
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gross negligence (or ordinary negligence in the case of the Institutional
Trustee) or willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust 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 Trust, 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 Holders of Securities might properly be paid.
SECTION 10.3. Fiduciary Duty. (a) To the extent that, at law or in
equity, an Indemnified Person has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to any other Covered Person, an
Indemnified Person acting under this Declaration shall not be liable to the
Trust or to any other Covered Person for its good faith reliance on the
provisions of this Declaration. The provisions of this Declaration, to the
extent that they restrict the duties and liabilities of an Indemnified Person
otherwise existing at law or in equity (other than the duties imposed on the
Institutional Trustee under the Trust Indenture Act), are agreed by the parties
hereto to replace such other duties and liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between
any Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein provides that an Indemnified Person shall act in
a manner that is, or provides terms that are, fair and reasonable to
the Trust or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise.
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(c) Whenever in this Declaration an Indemnified Person is permitted
or required to make a decision:
(i) in its "discretion" or under a grant of similar authority, the
Indemnified Person shall be entitled to consider 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 Trust 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 Declaration or
by applicable law.
SECTION 10.4. Indemnification. (a) (i) The Sponsor shall indemnify,
to the full extent permitted by law, any Company Indemnified 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 the Trust) by reason
of the fact that he is or was a Company Indemnified Person against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him 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 the Trust, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the Company
Indemnified Person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Trust, and, with
respect to any criminal action or proceeding, had reasonable cause to believe
that his conduct was unlawful.
(ii) The Sponsor shall indemnify, to the full extent permitted by
law, any Company Indemnified Person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit by or in the
right of the Trust to procure a judgment in its favor by reason of the fact that
he is or was a Company Indemnified Person against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Trust
and except that no such indemnification shall be made in respect of any claim,
issue or matter as to which such Company Indemnified Person shall have been
adjudged to be liable to the Trust unless and only to the extent that the Court
of Chancery of Delaware or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
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reasonably entitled to indemnity for such expenses which such Court of Chancery
or such other court shall deem proper.
(iii) To the extent that a Company Indemnified Person shall be
successful on the merits or otherwise (including dismissal of an action without
prejudice or the settlement of an action without admission of liability) in
defense of any action, suit or proceeding referred to in paragraphs (i) and (ii)
of this Section 10.4(a), or in defense of any claim, issue or matter therein, he
shall be indemnified, to the full extent permitted by law, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of this
Section 10.4(a) (unless ordered by a court) shall be made by the Sponsor only as
authorized in the specific case upon a determination that indemnification of the
Company Indemnified Person is proper in the circumstances because he has met the
applicable standard of conduct set forth in paragraphs (i) and (ii). Such
determination shall be made (1) by the Regular Trustees by a majority vote of a
quorum consisting of such Regular Trustees who were not parties to such action,
suit or proceeding, (2) if such a quorum is not obtainable, or, even if
obtainable, if a quorum of disinterested Regular Trustees so directs, by
independent legal counsel in a written opinion, or (3) by the Common Security
Holder of the Trust.
(v) Expenses (including attorneys' fees) incurred by a Company
Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in paragraphs (i) and (ii)
of this Section 10.4(a) shall be paid by the Sponsor in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of such Company Indemnified Person to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
Sponsor as authorized in this Section 10.4(a). Notwithstanding the foregoing, no
advance shall be made by the Sponsor if a determination is reasonably and
promptly made (i) by the Regular Trustees by a majority vote of a quorum of
disinterested Regular Trustees, (ii) if such a quorum is not obtainable, or,
even if obtainable, if a quorum of disinterested Regular Trustees so directs, by
independent legal counsel in a written opinion or (iii) the Common Security
Holder of the Trust, that, based upon the facts known to the Regular Trustees,
counsel or the Common Security Holder at the time such determination is made,
such Company Indemnified Person acted in bad faith or in a manner that such
person did not believe to be in or not opposed to the best interests of the
Trust, or, with respect to any criminal proceeding, that such Company
Indemnified Person believed or had reasonable cause to believe his conduct was
unlawful. In no event shall any advance be made in instances where the Regular
Trustees, independent legal counsel or Common Security Holder reasonably
determine that such person deliberately breached his duty to the Trust or its
Common or Preferred Security Holders.
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(vi) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other paragraphs of this Section 10.4(a) shall not be
deemed exclusive of any other rights to which those seeking indemnification and
advancement of expenses may be entitled under any agreement, vote of
stockholders or disinterested directors of the Sponsor or Preferred Security
Holders of the Trust or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office. All rights to
indemnification under this Section 10.4(a) shall be deemed to be provided by a
contract between the Sponsor and each Company Indemnified Person who serves in
such capacity at any time while this Section 10.4(a) is in effect. Any repeal or
modification of this Section 10.4(a) shall not affect any rights or obligations
then existing.
(vii) The Sponsor or the Trust may purchase and maintain insurance
on behalf of any person who is or was a Company Indemnified Person against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Sponsor would have the
power to indemnify him against such liability under the provisions of this
Section 10.4(a).
(viii) For purposes of this Section 10.4(a), references to "the
Trust" shall include, in addition to the resulting or surviving entity, any
constituent entity (including any constituent of a constituent) absorbed in a
consolidation or merger, so that any person who is or was a director, trustee,
officer or employee of such constituent entity, or is or was serving at the
request of such constituent entity as a director, trustee, officer, employee or
agent of another entity, shall stand in the same position under the provisions
of this Section 10.4(a) with respect to the resulting or surviving entity as he
would have with respect to such constituent entity if its separate existence had
continued.
(ix) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section 10.4(a) shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a Company
Indemnified Person and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(b) The Sponsor agrees to indemnify (i) the Institutional Trustee,
(ii) the Delaware Trustee, (iii) any Affiliate of the Institutional Trustee and
the Delaware Trustee, and (iv) any officers, directors, shareholders, members,
partners, employees, representatives, custodians, nominees or agents of the
Institutional Trustee and the Delaware Trustee (each of the Persons in (i)
through (iv) being referred to as a "Fiduciary Indemnified Person") for, and to
hold each Fiduciary Indemnified Person harmless against, any loss, liability or
expense incurred without gross negligence (or, in the case of the Institutional
Trustee, pursuant to Section 3.9, negligence) or bad faith on its part, arising
out of or in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses
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(including reasonable legal fees and expenses) of defending itself against or
investigating any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in this Section 10.4(b) shall survive the satisfaction
and discharge of this Declaration.
SECTION 10.5. Outside Businesses. Any Covered Person, the Sponsor,
the Delaware Trustee and the Institutional Trustee may engage in or possess an
interest in other business ventures of any nature or description, independently
or with others, similar or dissimilar to the business of the Trust, and the
Trust and the Holders of Securities shall have no rights by virtue of this
Declaration in and to such independent ventures or the income or profits derived
therefrom, and the pursuit of any such venture, even if competitive with the
business of the Trust, shall not be deemed wrongful or improper. No Covered
Persons, the Sponsor, the Delaware Trustee, or the Institutional Trustee shall
be obligated to present any particular investment or other opportunity to the
Trust even if such opportunity is of a character that, if presented to the
Trust, could be taken by the Trust, and any Covered Person, the Sponsor, the
Delaware Trustee and the Institutional Trustee shall have the right to take for
its own account (individually or as a partner or fiduciary) or to recommend to
others any such particular investment or other opportunity. Any Covered Person,
the Delaware Trustee and the Institutional Trustee may engage or be interested
in any financial or other transaction with the Sponsor or any Affiliate of the
Sponsor, or may act as depositary for, trustee or agent for, or act on any
committee or body of holders of, securities or other obligations of the Sponsor
or its Affiliates.
ARTICLE XI.
ACCOUNTING
SECTION 11.1. Fiscal Year. The fiscal year ("Fiscal Year") of the
Trust shall be the calendar year, or such other year as is required by the Code.
SECTION 11.2. Certain Accounting Matters. (a) At all times during
the existence of the Trust, the Regular Trustees shall keep, or cause to be
kept, full books of account, records and supporting documents, which shall
reflect in reasonable detail, each transaction of the Trust. The books of
account shall be maintained on the accrual method of accounting, in accordance
with generally accepted accounting principles, consistently applied. The Trust
shall use the accrual method of accounting for United States federal income tax
purposes. The books of account and the records of the Trust shall be examined by
and reported upon as of the end of each Fiscal Year of the Trust by a firm of
independent certified public accountants selected by the Regular Trustees.
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(b) The Regular Trustees shall cause to be duly prepared and
delivered to each of the Holders of Securities, any annual United States federal
income tax information statement, required by the Code, containing such
information with regard to the Securities held by each Holder as is required by
the Code and the Treasury Regulations. The Regular Trustees shall endeavor to
deliver all such statements within 30 days after the end of each Fiscal Year of
the Trust.
(c) The Regular Trustees shall cause to be duly prepared and filed
with the appropriate taxing authority, an annual United States federal income
tax return, on a Form 1041 or such other form required by United States federal
income tax law, and any other annual income tax returns required to be filed by
the Regular Trustees on behalf of the Trust with any state or local taxing
authority.
SECTION 11.3. Banking. The Trust shall maintain one or more bank
accounts in the name and for the sole benefit of the Trust; provided, however,
that all payments of funds in respect of the Debentures held by the
Institutional Trustee shall be made directly to the Institutional Trustee
Account and no other funds of the Trust shall be deposited in the Institutional
Trustee Account. The sole signatories for such accounts shall be designated by
the Regular Trustees; provided, however, that the Institutional Trustee shall
designate the signatories for the Institutional Trustee Account.
SECTION 11.4. Withholding. The Trust and the Regular Trustees shall
comply with all withholding requirements under United States federal, state and
local law. The Trust shall request, and the Holders shall provide to the Trust,
such forms or certificates as are necessary to establish an exemption from
withholding with respect to each Holder or beneficial owner, and any
representations and forms as shall reasonably be requested by the Trust to
assist it in determining the extent of, and in fulfilling, its withholding
obligations. The Regular Trustees shall file required forms with applicable
jurisdictions and, unless an exemption from withholding is properly established
by a Holder or beneficial owner, shall remit amounts withheld with respect to
the Holder or beneficial owner to applicable jurisdictions. To the extent that
the Trust is required to withhold and pay over any amounts to any authority with
respect to distributions or allocations to any Holder or beneficial owner, the
amount withheld shall be deemed to be a distribution in the amount of the
withholding to the Holder or beneficial owner. In the event of any claimed over
withholding, Holders shall be limited to an action against the applicable
jurisdiction. If the amount required to be withheld was not withheld from actual
Distributions made, the Trust may reduce subsequent Distributions by the amount
of such withholding.
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ARTICLE XII.
AMENDMENTS AND MEETINGS
SECTION 12.1. Amendments. (a) Except as otherwise provided in this
Declaration or by any applicable terms of the Securities, this Declaration may
only be amended by a written instrument approved and executed by:
(i) the Sponsor and the Regular Trustees (or, if there are more than
two Regular Trustees, a majority of the Regular Trustees);
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Institutional Trustee, the Institutional
Trustee; and
(iii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, the Delaware Trustee;
(b) no amendment shall be made, and any such purported amendment
shall be void and ineffective:
(i) unless, in the case of any proposed amendment, the Institutional
Trustee shall have first received an Officers' Certificate from each of
the Trust and the Sponsor that such amendment is permitted by, and
conforms to, the terms of this Declaration (including the terms of the
Securities);
(ii) unless, in the case of any proposed amendment which affects the
rights, powers, duties, obligations or immunities of the Institutional
Trustee, the Institutional Trustee shall have also first received an
opinion of counsel (who may be counsel to the Sponsor or the Trust) that
such amendment is permitted by, and conforms to, the terms of this
Declaration (including the terms of the Securities); and
(iii) to the extent the result of such amendment would be to:
(A) cause the trust to fail to continue to be classified for
purposes of United States federal income taxation as a grantor
trust;
(B) reduce or otherwise adversely affect the powers of the
Institutional Trustee in contravention of the Trust Indenture Act;
or
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(C) cause the Trust to be deemed to be an Investment Company
required to be registered under the Investment Company Act;
(c) at such time after the Trust has issued any Securities that
remain outstanding, any amendment that would adversely affect the rights,
privileges or preferences of any Holder of Securities may be effected only with
such additional requirements as may be set forth in the terms of such
Securities;
(d) Section 10.1(c) and this Section 12.1 shall not be amended
without the consent of all of the Holders of the Securities;
(e) Article IV shall not be amended without the consent of the
Holders of a Majority in liquidation amount of the Common Securities;
(f) the rights of the holders of the Common Securities under Article
V to increase or decrease the number of, and appoint and remove, Trustees shall
not be amended without the consent of the Holders of a Majority in liquidation
amount of the Common Securities; and
(g) notwithstanding Section 12.1(c), this Declaration may be amended
without the consent of the Holders of the Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this Declaration that
may be defective or inconsistent with any other provision of this
Declaration;
(iii) add to the covenants, restrictions or obligations of the
Sponsor;
(iv) conform to any change in Rule 3a-5 or written change in
interpretation or application of Rule 3a-5 by any legislative body, court,
government agency or regulatory authority, which change does not have a
material adverse effect on the right, preferences or privileges of the
Holders; and
(v) modify, eliminate and add to any provision of this Declaration
to such extent as may be necessary, provided such modification,
elimination or addition would not adversely affect the rights, privileges
or preference of any Holder of the Securities.
SECTION 12.2. Meetings of the Holders of Securities; Action by
Written Consent. (a) Meetings of the Holders of any class of Securities may be
called at any time by
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the Regular Trustees (or as provided in the terms of the Securities) to consider
and act on any matter on which Holders of such class of Securities are entitled
to act under the terms of this Declaration, the terms of the Securities or the
rules of any stock exchange on which the Preferred Securities are listed or
admitted for trading. The Regular Trustees shall call a meeting of the Holders
of such class if directed to do so by the Holders of at least 10% in liquidation
amount of such class of Securities. Such direction shall be given by delivering
to the Regular Trustees one or more calls in a writing stating that the signing
Holders of Securities wish to call a meeting and indicating the general or
specific purpose for which the meeting is to be called. Any Holders of
Securities calling a meeting shall specify in writing the Security Certificates
held by the Holders of Securities exercising the right to call a meeting and
only those Securities evidenced by Securities Certificates so specified shall be
counted for purposes of determining whether the required percentage set forth in
the second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to all the Holders of
Securities having a right to vote thereat at least 7 days and not more
than 60 days before the date of such meeting. Whenever a vote, consent or
approval of the Holders of Securities is permitted or required under this
Declaration or the rules of any stock exchange on which the Preferred
Securities are listed or admitted for trading, such vote, consent or
approval may be given at a meeting of the Holders of Securities. Any
action that may be taken at a meeting of the Holders of Securities may be
taken without a meeting if a consent in writing setting forth the action
so taken is signed by the Holders of Securities owning not less than the
minimum amount of Securities in liquidation amount that would be necessary
to authorize or take such action at a meeting at which all Holders of
Securities having a right to vote thereon were present and voting. Prompt
notice of the taking of action without a meeting shall be given to the
Holders of Securities entitled to vote who have not consented in writing.
The Regular Trustees may specify that any written ballot submitted to the
Security Holder for the purpose of taking any action without a meeting
shall be returned to the Trust within the time specified by the Regular
Trustees;
(ii) each Holder of a Security may authorize any Person to act for
it by proxy on all matters in which a Holder of Securities is entitled to
participate, including waiving notice of any meeting, or voting or
participating at a meeting. No proxy shall be valid after the expiration
of 11 months from the date thereof unless otherwise provided in the proxy.
Every proxy shall be revocable at the pleasure of the Holder of Securities
executing it. Except as otherwise provided herein, all matters relating to
the
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giving, voting or validity of proxies shall be governed by the General
Corporation Law of the State of Delaware relating to proxies, and judicial
interpretations thereunder, as if the Trust were a Delaware corporation
and the Holders of the Securities were stockholders of a Delaware
corporation;
(iii) each meeting of the Holders of the Securities shall be
conducted by the Regular Trustees or by such other Person that the Regular
Trustees may designate; and
(iv) unless the Business Trust Act, this Declaration, the terms of
the Securities, the Trust Indenture Act or the listing rules of any stock
exchange on which the Preferred Securities are then listed or trading,
otherwise provides, the Regular Trustees, in their sole discretion, shall
establish all other provisions relating to meetings of Holders of
Securities, including notice of the time, place or purpose of any meeting
at which any matter is to be voted on by any Holders of Securities, 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.
ARTICLE XIII.
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1. Representations and Warranties of Institutional
Trustee. The Trustee that acts as initial Institutional Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Institutional Trustee represents and warrants to the Trust and
the Sponsor at the time of the Successor Institutional Trustee's acceptance of
its appointment as Institutional Trustee that:
(a)(i) in the case of the initial Institutional Trustee, it is a
Delaware banking corporation with trust powers, duly organized, validly
existing and in good standing under the laws of the State of Delaware,
with trust power and authority to execute and deliver, and to carry out
and perform its obligations under the terms of, the Declaration and (ii)
in the case of any Successor Institutional Trustee, it satisfies the
requirements of Section 5.3(a) herein;
(b) the execution, delivery and performance by the Institutional
Trustee of the Declaration has been duly authorized by all necessary
corporate action on the part of the Institutional Trustee. The Declaration
has been duly executed and delivered by the
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Institutional Trustee, and it constitutes a legal, valid and binding
obligation of the Institutional Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws affecting
creditors' rights generally and to general principles of equity and the
discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law);
(c) the execution, delivery and performance of the Declaration by
the Institutional Trustee does not conflict with or constitute a breach of
the Articles of Organization or By-laws of the Institutional Trustee; and
(d) no consent, approval or authorization of, or registration with
or notice to, any State or Federal banking authority is required for the
execution, delivery or performance by the Institutional Trustee, of the
Declaration.
SECTION 13.2. Representations and Warranties of Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents and warrants to the
Trust and to the Sponsor at the date of this Declaration, and each Successor
Delaware Trustee represents and warrants to the Trust and the Sponsor at the
time of the Successor Delaware Trustee's acceptance of its appointment as
Delaware Trustee that:
(a)(i) in the case of the initial Delaware Trustee, it is a Delaware
banking corporation with trust powers, duly organized, validly existing
and in good standing under the laws of the State of Delaware, with trust
power and authority to execute and deliver, and to carry out and perform
its obligations under the terms of, the Declaration and (ii) in the case
of any Successor Delaware Trustee, it satisfies the requirements of
Section 5.2 herein;
(b) the Delaware Trustee has been authorized to perform its
obligations under the Certificate of Trust and the Declaration. The
Declaration under Delaware law constitutes a legal, valid and binding
obligation of the Delaware Trustee, enforceable against it in accordance
with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the
court (regardless of whether the enforcement of such remedies is
considered in a proceeding in equity or at law);
(c) no consent, approval or authorization of, or registration with
or notice to, any State or Federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee, of the
Declaration; and
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(d) the Delaware Trustee is a natural person who is a resident of
the State of Delaware or, if not a natural person, an entity which has its
principal place of business in the State of Delaware.
ARTICLE XIV.
MISCELLANEOUS
SECTION 14.1. Notices. All notices provided for in this Declaration
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by registered or certified mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at the
Trust's mailing address set forth below (or such other address as the
Trust may give notice of to the Holders of the Securities):
PLC Capital Trust II
c/o Protective Life Corporation
2801 Highway 280 South
Birmingham, Alabama 35223
(b) if given to the Delaware Trustee, at the mailing address set
forth below (or such other address as Delaware Trustee may give notice of
to the Holders of the Securities):
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
(c) if given to the Institutional Trustee, at its Corporate Trust
Office to the attention of Corporate Trust Administration (or such other
address as the Institutional Trustee may give notice of to the Holders of
the Securities):
(d) if given to the Holder of the Common Securities, at the mailing
address of the Sponsor set forth below (or such other address as the
Holder of the Common Securities may give notice to the Trust):
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Protective Life Corporation
2801 Highway 280 South
Birmingham, Alabama 35223
(e) if given to any other Holder, at the address set forth on the
books and records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 14.2. Governing Law. This Declaration and the rights of the
parties hereunder shall be governed by and interpreted in accordance with the
laws of the State of Delaware and all rights and remedies shall be governed by
such laws without regard to principles of conflict of laws.
SECTION 14.3. Intention of the Parties. It is the intention of the
parties hereto that the Trust be classified for United States federal income tax
purposes as a grantor trust. The provisions of this Declaration shall be
interpreted to further this intention of the parties.
SECTION 14.4. Headings. Headings contained in this Declaration are
inserted for convenience of reference only and do not affect the interpretation
of this Declaration or any provision hereof.
SECTION 14.5. Successors and Assigns. Whenever in this Declaration
any of the parties hereto is named or referred to, the successors and assigns of
such party shall be deemed to be included, and all covenants and agreements in
this Declaration by the Sponsor and the Trustees shall bind and inure to the
benefit of their respective successors and assigns, whether or not so expressed.
SECTION 14.6. Partial Enforceability. If any provision of this
Declaration, or the application of such provision to any Person or circumstance,
shall be held invalid, the remainder of this Declaration, or the application of
such provision to persons or circumstances other than those to which it is held
invalid, shall not be affected thereby.
SECTION 14.7. Counterparts. This Declaration may contain more than
one counterpart of the signature page and this Declaration may be executed by
the affixing of the
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signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
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IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
------------------------------------
Richard J. Bielen
Trustee
------------------------------------
Jerry W. DeFoor
Trustee
WILMINGTON TRUST COMPANY
Trustee
By:
---------------------------------
Name:
Title:
PROTECTIVE LIFE CORPORATION
as Sponsor
By:
---------------------------------
Name:
Title:
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ANNEX I
TERMS OF
___% TRUST ORIGINATED PREFERRED SECURITIES
___% TRUST ORIGINATED COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration of
Trust, dated as of __________, 199_ (as amended from time to time, the
"Declaration"), the designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Preferred Securities and the Common
Securities are set out below (each capitalized term used but not defined herein
has the meaning set forth in the Declaration or, if not defined in such
Declaration, as defined in the Prospectus referred to below):
1. Designation and Number. (a) Preferred Securities. _________ Preferred
Securities of the Trust with an aggregate liquidation amount with respect to the
assets of the Trust of ____________________ dollars ($__________) and a
liquidation amount with respect to the assets of the Trust of $25 per preferred
security, are hereby designated for the purposes of identification only as "___%
Trust Originated Preferred Securities(SM) (`TOPrS'(SM))" (the "Preferred
Securities"). The Preferred Security Certificates evidencing the Preferred
Securities shall be substantially in the form of Exhibit A-1 to the Declaration,
with such changes and additions thereto or deletions therefrom as may be
required by ordinary usage, custom or practice or to conform to the rules of any
stock exchange on which the Preferred Securities are listed.
(b) Common Securities. ______ Common Securities of the Trust with an
aggregate liquidation amount with respect to the assets of the Trust of
________________________________________________ dollars ($_________) and a
liquidation amount with respect to the assets of the Trust of $25 per common
security, are hereby designated for the purposes of identification only as "___%
Trust Originated Common Securities" (the "Common Securities"). The Common
Security Certificates evidencing the Common Securities shall be substantially in
the form of Exhibit A-2 to the Declaration, with such changes and additions
thereto or deletions therefrom as may be required by ordinary usage, custom or
practice.
2. Distributions. (a) Distributions payable on each Security will be
fixed at a rate per annum of ___% (the "Coupon Rate") of the stated liquidation
amount of $25 per Security, such rate being the rate of interest payable on the
Debentures to be held by the Institutional Trustee. Distributions in arrears for
more than three consecutive months will bear interest thereon compounded
quarterly at the Coupon Rate (to the extent permitted by applicable law). The
term "Distributions" as used herein includes such cash distributions and
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any such interest payable unless otherwise stated. A Distribution is payable
only to the extent that payments are made in respect of the Debentures held by
the Institutional Trustee and to the extent the Institutional Trustee has funds
available therefor. The amount of Distributions payable for any period will be
computed for any full quarterly Distribution period on the basis of a 360-day
year of twelve 30-day months, and for any period shorter than a full quarterly
Distribution period for which Distributions are computed, Distributions will be
computed on the basis of the actual number of days elapsed per 90-day quarter.
(b) Distributions on the Securities will be cumulative, will
accrue from __________, 199_, and will be payable quarterly in arrears, on
March 31, June 30, September 30, and December 31 of each year, commencing on
__________, 199_, except as otherwise described below. The Debenture Issuer
has the right under the Indenture to defer payments of interest by extending
the interest payment period from time to time on the Debentures for a period
not exceeding 20 consecutive quarters (each such period, an "Extension
Period"), during which Extension Period no interest shall be due and payable
on the Debentures, provided that no Extension Period shall last beyond the
date of maturity of the Debentures. As a consequence of any such deferral,
Distributions will also be deferred. Despite any such deferral, quarterly
Distributions will continue to accrue with interest thereon (to the extent
permitted by applicable law) at the Coupon Rate compounded quarterly during
any such Extension Period. Prior to the termination of any such Extension
Period, the Debenture Issuer may further extend such Extension Period;
provided that such Extension Period together with all such previous and
further extensions thereof may not exceed 20 consecutive quarters. Upon the
termination of any Extension Period, payments of accrued Distributions will
be payable to Holders as they appeared on the books and records of the Trust
on the record date immediately preceding the end of the applicable Extension
Period. Upon the termination of any Extension Period and the payment of all
amounts then due, the Debenture Issuer may commence a new Extension Period,
subject to the above requirements.
(c) Distributions on the Securities will be payable to the Holders
thereof as they appear on the books and records of the Trust on the relevant
record dates. While the Preferred Securities remain in book-entry only form, the
relevant record dates shall be one Business Day prior to the relevant payment
dates, which payment dates shall correspond to the interest payment dates on the
Debentures. Subject to any applicable laws and regulations and the provisions of
the Declaration, each such payment in respect of the Preferred Securities will
be made as described under the heading "Description of the Preferred Securities
- -- Book-Entry Only Issuance -- The Depository Trust Company" in the Prospectus
Supplement dated __________, 199_, of the Trust included in the Registration
Statement on Form S-3 of the Sponsor and the Trust. The relevant record dates
for the Common Securities shall be the same record dates as for the Preferred
Securities. If the Preferred Securities shall cease to be in book-entry only
form, the relevant record dates for the Preferred Securities shall conform to
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the rules of any securities exchange on which the securities are listed and, if
none, shall be the March 15, June 15, September 15, December 15, as the case may
be, before the relevant payment dates, which payment dates correspond to the
interest payment dates on the Debentures. Distributions payable on any
Securities that are not punctually paid on any Distribution payment date, as a
result of the Debenture Issuer having failed to make a payment under the
Debentures, will cease to be payable to the Person in whose name such Securities
are registered on the relevant record date, and such defaulted Distribution will
instead be payable to the Person in whose name such Securities are registered on
the special record date or other specified date determined in accordance with
the Indenture. If any date on which Distributions are payable on the Securities
is not a Business Day, then payment of the Distribution payable on such date
will be made on the next succeeding day that 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.
(d) In the event that there is any money or other property held by
or for the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata (as defined herein) among the Holders of the Securities.
3. Liquidation Distribution upon Dissolution. In the event of any
voluntary or involuntary dissolution, winding-up or termination of the Trust,
the Holders of the Securities on the date of such dissolution, winding-up or
termination, as the case may be, will be entitled to receive out of the assets
of the Trust available for distribution to Holders of Securities after
satisfaction of liabilities of creditors of the Trust an amount equal to the
aggregate of the stated liquidation amount of $25 per Security plus accrued and
unpaid Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution"), unless, in connection with such dissolution,
winding-up or termination, Debentures in an aggregate principal amount equal to
the aggregate stated liquidation amount of such Securities, with an interest
rate equal to the Coupon Rate of, and bearing accrued and unpaid interest in an
amount equal to the accrued and unpaid Distributions on, such Securities, shall
be distributed on a Pro Rata basis to the Holders of the Securities in exchange
for such Securities.
If, upon any such dissolution, the Liquidation Distribution can be
paid only in part because the Trust has insufficient assets available to pay in
full the aggregate Liquidation Distribution, then the amounts payable directly
by the Trust on the Securities shall be paid on a Pro Rata basis.
4. Redemption and Distribution. The Securities are subject to
redemption in accordance herewith at any time after __________, 20__ and, in
certain circumstances, following the occurrence of a Tax Event (as defined
below).
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(a) Upon the repayment of the Debentures in whole or in part,
whether at maturity or upon redemption (either at the option of the Debenture
Issuer or pursuant to a Tax Event in each case as described below), the proceeds
from such repayment or payment shall be simultaneously applied to redeem
Securities having an aggregate liquidation amount equal to the aggregate
principal amount of the Debentures so repaid or redeemed at a redemption price
of $25 per Security plus an amount equal to accrued and unpaid Distributions
thereon at the date of the redemption, payable in cash (the "Redemption Price").
Holders will be given not less than 30 nor more than 60 days' notice of any such
redemption.
(b) If fewer than all the outstanding Securities are to be so
redeemed, the Common Securities and the Preferred Securities will be redeemed
Pro Rata and the Preferred Securities to be redeemed will be redeemed as
described in Section 4(f)(ii) below.
(c) The Sponsor shall have the right at any time, upon notice to the
Regular Trustees, to elect to terminate the Trust, and upon receipt of such
notice, the Regular Trustees shall dissolve the Trust and, after satisfaction of
creditors of the Trust, cause Debentures held by the Institutional Trustee,
having an aggregate principal amount equal to the aggregate stated liquidation
amount of, with an interest rate identical to the Coupon Rate of, and accrued
and unpaid interest equal to accrued and unpaid Distributions on, and having the
same record date for payment as, the Securities, to be distributed to the
Holders of the Securities in liquidation of such Holders' interests in the
Securities within 90 days following receipt of the Sponsor's notice of election.
(d) If a Tax Event shall occur and be continuing, the Debenture
Issuer shall have the right at any time, upon not less than 30 nor more than 60
days' notice, to redeem the Debentures in whole or in part for cash within 90
days following the occurrence of such Tax Event, and, following such redemption,
Securities with an aggregate liquidation amount equal to the aggregate principal
amount of the Debentures so redeemed shall be redeemed by the Trust at the
Redemption Price on a Pro Rata basis; provided, however, that, if at the time
there is available to the Debenture Issuer or the Trust the opportunity to
eliminate, within such 90 day period, the Tax Event by taking some Ministerial
Action, the Trust or the Debenture Issuer will pursue such Ministerial Action in
lieu of redemption.
"Tax Event" means the receipt by the Debenture Issuer of an opinion
of nationally recognized independent tax counsel experienced in such matters to
the effect that, as a result of (i) any amendment to, or change (including any
announced prospective change) in, on or after the day before the date of
issuance of the Preferred Securities under the Declaration, the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein or (ii) any interpretation or application
of, or
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pronouncement with respect to, such laws or regulations by any legislative
body, court, governmental agency or regulatory authority, which amendment or
change is effective or which interpretation, application or pronouncement is
announced on or after the day before the date of issuance of the Preferred
Securities under the Declaration, there is more than an insubstantial
increase in the risk (x) that the Trust is, or will be within 90 days of the
date thereof, subject to United States federal income tax with respect to
income received or accrued on the Debentures and that the Trust would be
subject to United States federal income tax if the Debentures were
distributed to the holders of the Securities in liquidation of such holders'
interests in the Trust pursuant to the exercise by the Debenture Issuer of
its right to dissolve the Trust, (y) that interest payable by the Debenture
Issuer on the Debentures is not, or within 90 days of the date thereof, will
not be, deductible, in whole or in part, for United States federal income tax
purposes, even if the Debentures were distributed to the holders of the
Securities in liquidation of such holders' interests in the Trust pursuant to
the exercise by the Debenture Issuer of its right to dissolve the Trust or
(z) that the Trust is, or will be within 90 days of the date thereof, subject
to more than a de minimis amount of other taxes, duties or other governmental
charges and that the Trust would be subject to more than a de minimis amount
of taxes, duties or other governmental charges if the Debentures were
distributed to the holders of the Securities in liquidation of such holders'
interests in the Trust pursuant to the exercise by the Debenture Issuer of
its right to dissolve the Trust.
"Ministerial Action" means the filing of a form, making an election,
or pursuing some other similar reasonable measure that has no adverse effect on
the Trust, the Debenture Issuer, the Sponsor or the Holders.
After the date for any distribution of Debentures upon dissolution
of the Trust: (i) the Securities will no longer be deemed to be outstanding,
(ii) The Depository Trust Company (the "Depository") or its nominee (or any
successor Clearing Agency or its nominee), as the record Holder of the Preferred
Securities, will receive a registered global certificate or certificates
representing the Debentures to be delivered upon such distribution and (iii) any
certificates representing Securities, except for certificates representing
Preferred Securities held by the Depository or its nominee (or any successor
Clearing Agency or its nominee), will be deemed to represent beneficial
interests in the Debentures having an aggregate principal amount equal to the
aggregate stated liquidation amount of, with an interest rate identical to the
distribution rate of, and accrued and unpaid interest equal to accrued and
unpaid Distributions on such Securities until such certificates are presented to
the Debenture Issuer or its agent for transfer or reissue.
(d) The Trust may not redeem fewer than all the outstanding
Securities unless all accrued and unpaid Distributions have been paid on all
Securities for all quarterly Distribution periods terminating on or before the
date of redemption.
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(e) If the Debentures are distributed to holders of the Securities,
pursuant to the terms of the Indenture, the Debenture Issuer will use its best
efforts to have the Debentures listed on the New York Stock Exchange or on such
other exchange as the Preferred Securities were listed immediately prior to the
distribution of the Debentures.
(f) "Redemption or Distribution Procedures."
(i) Notice of any redemption of, or notice of distribution of
Debentures in exchange for, the Securities (a "Redemption/Distribution Notice")
will be given by the Trust by mail to each Holder of Securities to be redeemed
or exchanged not fewer than 30 nor more than 60 days before the date fixed for
redemption or exchange thereof which, in the case of a redemption, will be the
date fixed for redemption of the Debentures. For purposes of the calculation of
the date of redemption or exchange and the dates on which notices are given
pursuant to this Section 4(f)(i), a Redemption/Distribution Notice shall be
deemed to be given on the day such notice is first mailed by first-class mail,
postage prepaid, to Holders of Securities. Each Redemption/Distribution Notice
shall be addressed to the Holders of Securities at the address of each such
Holder appearing in the books and records of the Trust. No defect in the
Redemption/Distribution Notice or in the mailing of either thereof with respect
to any Holder shall affect the validity of the redemption or exchange
proceedings with respect to any other Holder.
(ii) In the event that fewer than all the outstanding Securities are
to be redeemed, the Securities to be redeemed shall be redeemed Pro Rata from
each Holder of Securities, it being understood that, in respect of Preferred
Securities registered in the name of and held of record by the Depository or its
nominee (or any successor Clearing Agency or its nominee), the distribution of
the proceeds of such redemption will be made to each Clearing Agency Participant
(or Person on whose behalf such nominee holds such securities) in accordance
with the procedures applied by such agency or nominee.
(iii) If Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice, which notice may only be issued if the
Debentures are redeemed as set out in this Section 4 (which notice will be
irrevocable), then (A) while the Preferred Securities are in book-entry only
form, with respect to the Preferred Securities, by 12:00 noon, New York City
time, on the redemption date, provided that the Debenture Issuer has paid the
Institutional Trustee a sufficient amount of cash in connection with the related
redemption or maturity of the Debentures, the Institutional Trustee will deposit
irrevocably with the Depository or its nominee (or successor Clearing Agency or
its nominee) funds sufficient to pay the applicable Redemption Price with
respect to the Preferred Securities and will give the Depository irrevocable
instructions and authority to pay the Redemption Price to the Holders of the
Preferred Securities, and (B) with respect to Preferred Securities issued in
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definitive form and Common Securities, provided that the Debenture Issuer has
paid the Institutional Trustee a sufficient amount of cash in connection with
the related redemption or maturity of the Debentures, the Institutional Trustee
will pay the relevant Redemption Price to the Holders of such Securities by
check mailed to the address of the relevant Holder appearing on the books and
records of the Trust on the redemption date. If a Redemption/Distribution Notice
shall have been given and funds deposited as required, if applicable, then
immediately prior to the close of business on the date of such deposit, or on
the redemption date, as applicable, distributions will cease to accrue and all
rights of Holders of such Securities so called for redemption will cease, except
the right of the Holders of such Securities to receive the Redemption Price, but
without interest on such Redemption Price. Neither the Regular Trustees nor the
Trust shall be required to register or cause to be registered the transfer of
any Securities that have been so called for redemption. If any date fixed for
redemption of Securities is not a Business Day, then payment of the Redemption
Price payable on such date will be made on the next succeeding day that is a
Business Day (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 each case
with the same force and effect as if made on such date fixed for redemption. If
payment of the Redemption Price in respect of any Securities is improperly
withheld or refused and not paid either by the Institutional Trustee or by the
Sponsor as guarantor pursuant to the relevant Securities Guarantee,
Distributions on such Securities will continue to accrue from the original
redemption date to the actual 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.
(iv) Redemption/Distribution Notices shall be sent by the Regular
Trustees on behalf of the Trust to (A) in respect of the Preferred Securities,
the Depository or its nominee (or any successor Clearing Agency or its nominee)
if Global Certificates have been issued or, if Definitive Preferred Security
Certificates have been issued, to the Holder thereof, and (B) in respect of the
Common Securities to the Holder thereof.
(v) Subject to the foregoing and applicable law (including, without
limitation, United States federal securities laws), provided the acquiror is not
the Holder of the Common Securities or the obligor under the Indenture, the
Sponsor or any of its subsidiaries may at any time and from time to time
purchase outstanding Preferred Securities by tender, in the open market or by
private agreement.
5. Voting Rights - Preferred Securities. (a) Except as provided under
Sections 5(b) and 7 of this Annex I and as otherwise required by law and the
Declaration, the Holders of the Preferred Securities will have no voting rights.
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(b) Subject to the requirements set forth in this paragraph, the
Holders of a Majority in liquidation amount of the Preferred Securities, voting
separately as a class may direct the time, method, and place of conducting any
proceeding for any remedy available to the Institutional Trustee, or exercising
any trust or power conferred upon the Institutional Trustee under the
Declaration, including (i) directing the time, method, place of conducting any
proceeding for any remedy available to the Debenture Trustee, or exercising any
trust or power conferred on the Debenture Trustee with respect to the
Debentures, (ii) waive any past default and its consequences that is waivable
under Section 5.7 of the Indenture, or (iii) exercise any right to rescind or
annul a declaration that the principal of all the Debentures shall be due and
payable, provided, however, that, where a consent or action under the Indenture
would require the consent or act of the Holders of greater than a majority of
the Holders in principal amount of Debentures affected thereby (a "Super
Majority"), the Institutional Trustee may only give such consent or take such
action at the written direction of the Holders of at least the proportion in
liquidation amount of the Preferred Securities which the relevant Super Majority
represents of the aggregate principal amount of the Debentures outstanding. The
Institutional Trustee shall not revoke any action previously authorized or
approved by a vote of the Holders of the Preferred Securities. Other than with
respect to directing the time, method and place of conducting any remedy
available to the Institutional Trustee or the Debenture Trustee as set forth
above, the Institutional Trustee shall not take any action in accordance with
the directions of the Holders of the Preferred Securities under this paragraph
unless the Institutional Trustee has obtained an opinion of tax counsel to the
effect that for the purposes of United States federal income tax the Trust will
not be classified as other than a grantor trust on account of such action. If a
Declaration Event of Default has occurred and is continuing and such event is
attributable to the failure of the Debenture Issuer to pay interest or principal
on the Debentures on the date such interest or principal is otherwise payable
(or in the case of redemption, on the redemption date), then a Holder of
Preferred Securities may directly institute a proceeding for enforcement of
payment to such Holder of the principal of or interest on the Debentures having
a principal amount equal to the aggregate liquidation amount of the Preferred
Securities of such Holder on or after the respective due date specified in the
Debentures. Notwithstanding any payments made to such Holder by the Debenture
Issuer in connection with such proceeding, the Debenture Issuer shall remain
obligated to pay the principal of or interest on the Debentures held by the
Trust or the Institutional Trustee, and the Debenture Issuer shall be subrogated
to the rights of the Holders of Preferred Securities with respect to payments on
the Preferred Securities to the extent of any payments made by the Debenture
Issuer to such Holder in any such proceeding. Except as provided in the second
preceding sentence, the Holders of Preferred Securities will not be able to
exercise directly any other remedy available to the holders of the Debentures.
Any approval or direction of Holders of Preferred Securities may be
given at a separate meeting of Holders of Preferred Securities convened for such
purpose, at a meeting of
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all of the Holders of Securities in the Trust or pursuant to written consent.
The Regular Trustees will cause a notice of any meeting at which Holders of
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 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
consents.
No vote or consent of the Holders of the Preferred Securities will
be required for the Trust to redeem and cancel Preferred Securities or to
distribute the Debentures in accordance with the Declaration and the terms of
the Securities.
Notwithstanding that Holders of Preferred Securities are entitled to
vote or consent under any of the circumstances described above, any of the
Preferred Securities that are owned by the Sponsor or any Affiliate of the
Sponsor shall not be entitled to vote or consent and shall, for purposes of such
vote or consent, be treated as if they were not outstanding.
6. Voting Rights - Common Securities. (a) Except as provided under
Sections 6(b) and (c) of this Annex I and as otherwise required by law and the
Declaration, the Holders of the Common Securities will have no voting rights.
(b) The Holders of the Common Securities are entitled, in accordance
with Article V of the Declaration, to vote to appoint, remove or replace any
Trustee or to increase or decrease the number of Trustees.
(c) Subject to Section 2.6 of the Declaration and only after the
Event of Default with respect to the Preferred Securities has been cured,
waived, or otherwise eliminated and subject to the requirements of the second to
last sentence of this paragraph, the Holders of a Majority in liquidation amount
of the Common Securities, voting separately as a class, may direct the time,
method, and place of conducting any proceeding for any remedy available to the
Institutional Trustee, or exercising any trust or power conferred upon the
Institutional Trustee under the Declaration, including (i) directing the time,
method, place of conducting any proceeding for any remedy available to the
Debenture Trustee, or exercising any trust or power conferred on the Debenture
Trustee with respect to the Debentures, (ii) waive any past default and its
consequences that is waivable under Section 5.7 of the Indenture, or (iii)
exercise any right to rescind or annul a declaration that the principal of all
the Debentures shall be due and payable, provided that, where a consent or
action under the Indenture would require the consent or act of the Holders of
greater than a majority in principal amount of
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Debentures affected thereby (a "Super Majority"), the Institutional Trustee may
only give such consent or take such action at the written direction of the
Holders of at least the proportion in liquidation amount of the Common
Securities which the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding. Pursuant to this Section 6(c),
the Institutional Trustee shall not revoke any action previously authorized or
approved by a vote of the Holders of the Preferred Securities. Other than with
respect to directing the time, method and place of conducting any remedy
available to the Institutional Trustee or the Debenture Trustee as set forth
above, the Institutional Trustee shall not take any action in accordance with
the directions of the Holders of the Common Securities under this paragraph
unless the Institutional Trustee has obtained an opinion of tax counsel to the
effect that for the purposes of United States federal income tax the Trust will
not be classified as other than a grantor trust on account of such action.
Any approval or direction of Holders of Common Securities may be
given at a separate meeting of Holders of Common Securities convened for such
purpose, at a meeting of all of the Holders of Securities in the Trust or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Common 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 Common 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 consents.
No vote or consent of the Holders of the Common Securities will be
required for the Trust to redeem and cancel Common Securities or to distribute
the Debentures in accordance with the Declaration and the terms of the
Securities.
7. Amendments to Declaration and Indenture. (a) In addition to any
requirements under Section 12.1 of the Declaration, if any proposed amendment to
the Declaration provides for, or the Regular Trustees otherwise propose to
effect, (i) any action that would adversely affect the powers, preferences or
special rights of the Securities, whether by way of amendment to the Declaration
or otherwise, or (ii) the dissolution, winding-up or termination of the Trust,
other than as described in Section 8.1 of the Declaration, then the Holders of
outstanding Securities as a class, will be entitled to vote on such amendment or
proposal (but not on any other amendment or proposal) and such amendment or
proposal shall not be effective except with the approval of the Holders of at
least a Majority in liquidation amount of the Securities, voting together as a
single class; provided, however, if any amendment or proposal referred to in
clause (i) above would adversely affect only the Preferred Securities or only
the Common Securities, then only the affected class will be
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entitled to vote on such amendment or proposal and such amendment or proposal
shall not be effective except with the approval of a Majority in liquidation
amount of such class of Securities.
(b) In the event the consent of the Institutional Trustee as the
holder of the Debentures is required under the Indenture with respect to any
amendment, modification or termination of the Indenture or the Debentures, the
Institutional Trustee shall request the written direction of the Holders of the
Securities with respect to such amendment, modification or termination and shall
vote with respect to such amendment, modification or termination as directed by
a Majority in liquidation amount of the Securities voting together as a single
class; provided, however, that where a consent under the Indenture would require
the consent of the holders of greater than a majority in aggregate principal
amount of the Debentures (a "Super Majority"), the Institutional Trustee may
only give such consent at the direction of the Holders of at least the
proportion in liquidation amount of the Securities which the relevant Super
Majority represents of the aggregate principal amount of the Debentures
outstanding; provided, further, that the Institutional Trustee shall not take
any action in accordance with the directions of the Holders of the Securities
under this Section 7(b) unless the Institutional Trustee has obtained an opinion
of tax counsel to the effect that for the purposes of United States federal
income tax the Trust will not be classified as other than a grantor trust on
account of such action.
8. Pro Rata. A reference in this Annex I to any payment,
distribution or treatment as being "Pro Rata" shall mean pro rata to each Holder
of Securities according to the aggregate liquidation amount of the Securities
held by the relevant Holder in relation to the aggregate liquidation amount of
all Securities outstanding unless, in relation to a payment, an Event of Default
under the Declaration has occurred and is continuing, in which case any funds
available to make such payment shall be paid first to each Holder of the
Preferred Securities pro rata according to the aggregate liquidation amount of
Preferred Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Preferred Securities outstanding, and only after
satisfaction of all amounts owed to the Holders of the Preferred Securities, to
each Holder of Common Securities pro rata according to the aggregate liquidation
amount of Common Securities held by the relevant Holder relative to the
aggregate liquidation amount of all Common Securities outstanding.
9. Ranking. The Preferred Securities rank pari passu with, and
payment thereon shall be made Pro Rata with, the Common Securities except that,
where an Event of Default occurs and is continuing under the Indenture in
respect of the Debentures held by the Institutional Trustee, the rights of
Holders of the Common Securities to payment in respect of Distributions and
payments upon liquidation, redemption and otherwise are subordinated to the
rights to payment of the Holders of the Preferred Securities.
I-11
<PAGE>
10. Listing. The Regular Trustees shall use their best efforts to
cause the Preferred Securities to be listed for quotation on the New York Stock
Exchange, Inc.
11. Acceptance of Securities Guarantee and Indenture. Each Holder of
Preferred Securities and Common Securities, by the acceptance thereof, agrees to
the provisions of the Preferred Securities Guarantee and the Common Securities
Guarantee, respectively, including the subordination provisions therein, and to
the provisions of the Indenture.
12. No Preemptive Rights. The Holders of the Securities shall have
no preemptive rights to subscribe for any additional securities.
13. Miscellaneous. The foregoing terms set forth in this Annex I
constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the Preferred
Securities Guarantee or the Common Securities Guarantee (as may be appropriate),
and the Indenture to any Holder without charge on written request to the Sponsor
at its principal place of business.
I-12
<PAGE>
EXHIBIT A-1
FORM OF PREFERRED SECURITY CERTIFICATE
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT -
This Preferred Security is a Global Certificate within the meaning of the
Declaration hereinafter referred to and is registered in the name of The
Depository Trust Company (the "Depositary") or a nominee of the Depositary. This
Preferred Security is exchangeable for Preferred Securities registered in the
name of a person other than the Depositary or its nominee only in the limited
circumstances described in the Declaration and no transfer of this Preferred
Security (other than a transfer of this Preferred Security as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary) may be registered except in
limited circumstances.
Unless this Preferred Security is presented by an authorized
representative of The Depository Trust Company, a New York Corporation ("DTC")
to the Trust or its agent for registration of transfer, exchange or payment, and
any Preferred Security issued is registered in the name of Cede & Co. or such
other name as requested by an authorized representative of DTC (and any payment
hereon is made to Cede & Co.), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much as the registered
owner hereof, Cede & Co., has an interest herein.]
Certificate Number:
Number of Preferred Securities: _________
CUSIP NO.: _________
Certificate Evidencing Preferred Securities
of
PLC CAPITAL TRUST II
__% Trust Originated Preferred Securities(SM) ("TOPrS"(SM))
(liquidation amount $25 per Preferred Security)
PLC CAPITAL TRUST II, a statutory business trust formed under the
laws of the State of Delaware (the "Trust"), hereby certifies that ____________
(the "Holder") is the
A1-1
<PAGE>
registered owner of preferred securities of the Trust representing undivided
beneficial interests in the assets of the Trust designated the ___% Trust
Originated Preferred Securities(SM) (liquidation amount $25 per Preferred
Security) (the "Preferred Securities"). The Preferred Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer. The designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Preferred Securities
represented hereby are issued and shall in all respects be subject to the
provisions of the Amended and Restated Declaration of Trust of the Trust dated
as of __________, 199_, as the same may be amended from time to time (the
"Declaration"), including the designation of the terms of the Preferred
Securities as set forth in Annex I to the Declaration. Capitalized terms used
herein but not defined shall have the meaning given them in the Declaration. The
Holder is entitled to the benefits of the Preferred Securities Guarantee to the
extent provided therein. The Sponsor will provide a copy of the Declaration, the
Preferred Securities Guarantee and the Indenture to the Holder without charge
upon written request to the Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Preferred Securities
as evidence of indirect beneficial ownership in the Debentures.
Distributions payable on each Preferred Security will be fixed at a
rate per annum of ___% (the "Coupon Rate") of the stated liquidation amount of
$25 per Preferred Security, such rate being the rate of interest payable on the
Debentures to be held by the Institutional Trustee. Distributions in arrears for
more than one quarter will bear interest thereon compounded quarterly at the
Coupon Rate (to the extent permitted by applicable law). The term
"Distributions" as used herein includes such cash distributions and any such
interest payable unless otherwise stated. A Distribution is payable only to the
extent that payments are made in respect of the Debentures held by the
Institutional Trustee and to the extent the Institutional Trustee has funds
available therefor. The amount of Distributions payable for any period will be
computed for any full quarterly Distribution period on the basis of a 360-day
year of twelve 30-day months, and for any period shorter than a full quarterly
Distribution period for which Distributions are computed, Distributions will be
computed on the basis of the actual number of days elapsed per 90-day quarter.
Except as otherwise described below, Distributions on the Preferred
Securities will be cumulative, will accrue from the date of original issuance
and will be payable quarterly in arrears, on March 31, June 30, September 30 and
December 31 of each year, commencing
A1-2
<PAGE>
on __________, 199_, to Holders of record one (1) Business Day prior to such
payment dates, which payment dates shall correspond to the interest payment
dates on the Debentures; provided however, that if the Preferred Securities are
not then in book-entry only form, such Distributions shall be paid to the
Holders of record on the March 15, June 15, September 15 or December 15, as the
case may be, prior to such payment dates. The Debenture Issuer has the right
under the Indenture to defer payments of interest by extending the interest
payment period from time to time on the Debentures for a period not exceeding 20
consecutive quarters (each an "Extension Period") and, as a consequence of such
deferral, Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accrue with interest thereon (to the extent
permitted by applicable law) at the Coupon Rate compounded quarterly during any
such Extension Period. Prior to the termination of any such Extension Period,
the Debenture Issuer may further extend such Extension Period; provided that
such Extension Period together with all such previous and further extensions
thereof may not exceed 20 consecutive quarters. Payments of accrued
Distributions will be payable to Holders as they appear on the books and records
of the Trust on the record date immediately preceding the end of the Extension
Period. Upon the termination of any Extension Period and the payment of all
amounts then due, the Debenture Issuer may commence a new Extension Period,
subject to the above requirements.
The Preferred Securities shall be redeemable as provided in the
Declaration.
A1-3
<PAGE>
IN WITNESS WHEREOF, the Trust has executed this certificate this
_____ day of __________, 199__.
PLC CAPITAL TRUST II
By:
--------------------------------
Name:
Title:
A1-4
<PAGE>
-------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security Certificate to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
__________________________________________________________________agent to
transfer this Preferred Security Certificate on the books of the Trust. The
agent may substitute another to act for him or her.
Date:_________________
Signature:
----------------------------
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
A1-5
<PAGE>
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
The Common Securities may only be transferred by the Debenture
Issuer and any Related Party to the Debenture Issuer or a Related Party of the
Debenture Issuer; provided that, any such transfer is subject to the condition
precedent that the transferor obtain the written opinion of nationally
recognized independent counsel experienced in such matters that such transfer
would not cause more than an insubstantial risk that:
(i) the Trust would not be classified for United States federal
income tax purposes as a grantor Trust; and
(ii) the Trust would be an Investment Company or the transferee
would become an Investment Company.
Certificate Number
Number of Common Securities
Certificate Evidencing Common Securities
of
PLC CAPITAL TRUST II
___% Trust Originated Common Securities
(liquidation amount $25 per Common Security)
PLC CAPITAL TRUST II, a statutory business trust formed under the
laws of the State of Delaware (the "Trust"), hereby certifies that __________
(the "Holder") is the registered owner of common securities of the Trust
representing undivided beneficial interests in the assets of the Trust
designated the ___% Trust Originated Common Securities (liquidation amount $25
per Common Security) (the "Common Securities"). The Common Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer. The designation, rights, privileges, restrictions,
preferences and other terms and
A2-1
<PAGE>
provisions of the Common Securities represented hereby are issued and shall in
all respects be subject to the provisions of the Amended and Restated
Declaration of Trust of the Trust dated as of __________, 199_, as the same may
be amended from time to time (the "Declaration"), including the designation of
the terms of the Common Securities as set forth in Annex I to the Declaration.
Capitalized terms used herein but not defined shall have the meaning given them
in the Declaration. The Holder is entitled to the benefits of the Common
Securities Guarantee to the extent provided therein. The Sponsor will provide a
copy of the Declaration, the Common Securities Guarantee and the Indenture to a
Holder without charge upon written request to the Sponsor at its principal place
of business.
Upon receipt of this certificate, the Sponsor is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Common Securities as
evidence of indirect beneficial ownership in the Debentures.
Distributions payable on each Common Security will be fixed at a
rate per annum of ___% (the "Coupon Rate") of the stated liquidation amount of
$25 per Common Security, such rate being the rate of interest payable on the
Debentures to be held by the Institutional Trustee. Distributions in arrears for
more than one quarter will bear interest thereon compounded quarterly at the
Coupon Rate (to the extent permitted by applicable law). The term
"Distributions" as used herein includes such cash distributions and any such
interest payable unless otherwise stated. A Distribution is payable only to the
extent that payments are made in respect of the Debentures held by the
Institutional Trustee and to the extent the Institutional Trustee has funds
available therefor. The amount of Distributions payable for any period will be
computed for any full quarterly Distribution period on the basis of a 360-day
year of twelve 30-day months, and for any period shorter than a full quarterly
Distribution period for which Distributions are computed, Distributions will be
computed on the basis of the actual number of days elapsed per 90-day quarter.
Except as otherwise described below, Distributions on the Common
Securities will be cumulative, will accrue from the date of original issuance
and will be payable quarterly in arrears, on March 31, June 30, September 30 and
December 31 of each year, commencing on __________, 199_, to Holders of record
one (1) Business Day prior to such payment dates, which payment dates shall
correspond to the interest payment dates on the Debentures; provided, however,
that if the Preferred Securities are not then in book-entry only form, such
Distributions shall be paid to the Holders of record on the March 15, June 15,
September 15 or December 15, as the case may be, prior to such payment dates.
The Debenture Issuer has the right under the Indenture to defer payments of
interest by extending the interest payment
A2-2
<PAGE>
period from time to time on the Debentures for a period not exceeding 20
consecutive quarters (each an "Extension Period") and, as a consequence of such
deferral, Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accrue with interest thereon (to the extent
permitted by applicable law) at the Coupon Rate compounded quarterly during any
such Extension Period. Prior to the termination of any such Extension Period,
the Debenture Issuer may further extend such Extension Period; provided that
such Extension Period together with all such previous and further extensions
thereof may not exceed 20 consecutive quarters. Payments of accrued
Distributions will be payable to Holders as they appear on the books and records
of the Trust on the record date immediately preceding the end of the Extension
Period. Upon the termination of any Extension Period and the payment of all
amounts then due, the Debenture Issuer may commence a new Extension Period,
subject to the above requirements.
The Common Securities shall be redeemable as provided in the
Declaration.
A2-3
<PAGE>
IN WITNESS WHEREOF, the Trust has executed this certificate this
_____ day of __________, 199__.
PLC CAPITAL TRUST II
By:
-------------------------------
Name:
Title:
A2-4
<PAGE>
---------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common Security
Certificate to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints _______________________________________________________
________________________________________________________________________________
_________________________ agent to transfer this Common Security Certificate on
the books of the Trust. The agent may substitute another to act for him or her.
Date:__________________
Signature:__________________
(Sign exactly as your name appears on the other side of this Common Security
Certificate)
A2-5
<PAGE>
EXHIBIT B
SPECIMEN OF DEBENTURE
B-1
<PAGE>
EXHIBIT C
PURCHASE AGREEMENT
C-1
<PAGE>
EXHIBIT 4(hh)
Draft--July 7, 1997
================================================================================
AMENDED AND RESTATED DECLARATION
OF TRUST
PLC CAPITAL TRUST III
Dated as of __________, 199_
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I.
INTERPRETATION AND DEFINITIONS
SECTION 1.1. Definitions..............................................2
ARTICLE II.
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application.........................8
SECTION 2.2. Lists of Holders of Securities...........................9
SECTION 2.3. Reports by the Institutional Trustee.....................9
SECTION 2.4. Periodic Reports to Institutional Trustee................9
SECTION 2.5. Evidence of Compliance with Conditions Precedent.........9
SECTION 2.6. Events of Default; Waiver...............................10
SECTION 2.7. Event of Default; Notice................................11
ARTICLE III.
ORGANIZATION
SECTION 3.1. Name....................................................12
SECTION 3.2. Office..................................................12
SECTION 3.3. Purpose.................................................12
SECTION 3.4. Authority...............................................13
SECTION 3.5. Title to Property of the Trust..........................13
SECTION 3.6. Powers and Duties of the Regular Trustees...............13
SECTION 3.7. Prohibition of Actions by the Trust and the Trustees....16
SECTION 3.8. Powers and Duties of the Institutional Trustee..........17
SECTION 3.9. Certain Duties and Responsibilities of the
Institutional Trustee..................................19
SECTION 3.10. Certain Rights of Institutional Trustee................21
SECTION 3.11. Delaware Trustee.......................................23
SECTION 3.12. Execution of Documents.................................23
SECTION 3.13. Not Responsible for Recitals or Issuance of Securities.24
i
<PAGE>
Page
----
SECTION 3.14. Duration of Trust......................................24
SECTION 3.15. Mergers................................................24
ARTICLE IV.
SPONSOR
SECTION 4.1. Sponsor's Purchase of Common Securities.................26
SECTION 4.2. Responsibilities of the Sponsor.........................26
ARTICLE V.
TRUSTEES
SECTION 5.1. Number of Trustees......................................27
SECTION 5.2. Delaware Trustee........................................27
SECTION 5.3. Institutional Trustee; Eligibility......................28
SECTION 5.4. Certain Qualifications of Regular Trustees and
Delaware Trustee Generally.............................29
SECTION 5.5. Regular Trustees........................................29
SECTION 5.6. Appointment, Removal and Resignation of Trustees........29
SECTION 5.7. Vacancies Among Trustees................................31
SECTION 5.8. Effect of Vacancies.....................................31
SECTION 5.9. Meetings................................................31
SECTION 5.10. Delegation of Power....................................32
SECTION 5.11. Merger, Conversion, Consolidation or Succession
to Business...........................................32
ARTICLE VI.
DISTRIBUTIONS
SECTION 6.1. Distributions...........................................33
ARTICLE VII.
ISSUANCE OF SECURITIES
ii
<PAGE>
Page
----
SECTION 7.1. General Provisions Regarding Securities.................33
SECTION 7.2. Paying Agent............................................34
ARTICLE VIII.
TERMINATION OF TRUST
SECTION 8.1. Termination of Trust....................................34
ARTICLE IX.
TRANSFER OF INTERESTS
SECTION 9.1. Transfer of Securities..................................35
SECTION 9.2. Transfer of Certificates................................36
SECTION 9.3. Deemed Security Holders.................................36
SECTION 9.4. Book Entry Interests....................................36
SECTION 9.5. Notices to Clearing Agency..............................37
SECTION 9.6. Appointment of Successor Clearing Agency................37
SECTION 9.7. Definitive Preferred Security Certificates..............38
SECTION 9.8. Mutilated, Destroyed, Lost or Stolen Certificates.......38
ARTICLE X.
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1. Liability..............................................39
SECTION 10.2. Exculpation............................................39
SECTION 10.3. Fiduciary Duty.........................................40
SECTION 10.4. Indemnification........................................41
SECTION 10.5. Outside Businesses.....................................44
ARTICLE XI.
ACCOUNTING
iii
<PAGE>
Page
----
SECTION 11.1. Fiscal Year............................................44
SECTION 11.2. Certain Accounting Matters.............................44
SECTION 11.3. Banking................................................45
SECTION 11.4. Withholding............................................45
ARTICLE XII.
AMENDMENTS AND MEETINGS
SECTION 12.1. Amendments.............................................46
SECTION 12.2. Meetings of the Holders of Securities;
Action by Written Consent.............................47
ARTICLE XIII.
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1. Representations and Warranties of
Institutional Trustee.................................49
SECTION 13.2. Representations and Warranties of Delaware Trustee.....50
ARTICLE XIV.
MISCELLANEOUS
SECTION 14.1. Notices................................................51
SECTION 14.2. Governing Law..........................................52
SECTION 14.3. Intention of the Parties...............................52
SECTION 14.4. Headings...............................................52
SECTION 14.5. Successors and Assigns.................................52
SECTION 14.6. Partial Enforceability.................................52
SECTION 14.7. Counterparts...........................................52
ANNEX I TERMS OF SECURITIES
EXHIBIT A-1 FORM OF PREFERRED SECURITY CERTIFICATE
EXHIBIT A-2 FORM OF COMMON SECURITY CERTIFICATE
iv
<PAGE>
Page
----
EXHIBIT B SPECIMEN OF DEBENTURE
EXHIBIT C PURCHASE AGREEMENT
v
<PAGE>
CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as amended Declaration
310 (a)..................................................... 5.3(a)
310 (c)..................................................... Inapplicable
311 (c)..................................................... Inapplicable
312 (a)..................................................... 2.2(a)
312 (b)..................................................... 2.2(b)
313......................................................... 2.3
314 (a)..................................................... 2.4
314 (b)..................................................... Inapplicable
314 (c)..................................................... 2.5
314 (d)..................................................... Inapplicable
314 (f)..................................................... Inapplicable
315 (a)..................................................... 3.9(b)
315 (c)..................................................... 3.9(a)
315 (d)..................................................... 3.9(a)
316 (a)..................................................... Annex I
316 (c)..................................................... 3.6(e)
* This Cross-Reference Table does not constitute part of the Declaration and
shall not affect the interpretation of any of its terms or provisions.
vi
<PAGE>
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
PLC CAPITAL TRUST III
__________, 199_
AMENDED AND RESTATED DECLARATION OF TRUST (this
"Declaration") dated and effective as of __________, 199_, by the Trustees (as
defined herein), the Sponsor (as defined herein) and by the holders, from time
to time, of undivided beneficial interests in the assets of the Trust (as
defined herein) to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor established PLC Capital Trust
III (the "Trust"), a trust under the Delaware Business Trust Act, pursuant to a
Declaration of Trust dated as of __________, 199_ (the "Original Declaration")
and a Certificate of Trust filed with the Secretary of State of the State of
Delaware on __________, 199_, for the sole purpose of issuing and selling
certain securities representing undivided beneficial interests in the assets of
the Trust and investing the proceeds thereof in certain Debentures of the
Debenture Issuer;
WHEREAS, prior to the execution hereof, no interests in the Trust
have been issued;
WHEREAS, all of the Trustees and the Sponsor, by this Declaration,
amend and restate each and every term and provision of the Original Declaration;
and
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a business trust under the Business Trust Act and that
this Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
<PAGE>
ARTICLE I.
INTERPRETATION AND DEFINITIONS
SECTION 1.1. Definitions. Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in
the preamble above have the respective meanings assigned to them in this
Section 1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to
this Declaration as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles and Sections and
Annexes and Exhibits are to Articles and Sections of and Annexes and
Exhibits to this Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Declaration unless otherwise defined in this Declaration
or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405
of the Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent.
"Authorized Officer" of a Person means any Person that is authorized
to bind such Person.
"Book Entry Interest" means a beneficial interest in a Global
Certificate, ownership and transfers of which shall be maintained and made
through book entries by a Clearing Agency as described in Section 9.4.
"Business Day" means any day other than a day on which banking
institutions in New York, New York are authorized or required by law to close.
2
<PAGE>
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code Section 3801 et seq., as it may be amended from time to time,
or any successor legislation.
"Certificate" means a Common Security Certificate or a Preferred
Security Certificate.
"Clearing Agency" means an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as depositary
for the Preferred Securities and in whose name or in the name of a nominee of
that organization shall be registered a Global Certificate and which shall
undertake to effect book entry transfers and pledges of the Preferred
Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Clearing
Agency effects book entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means the "Closing Time" under the Purchase
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, or any successor legislation.
"Commission" means the Securities and Exchange Commission.
"Common Security" has the meaning specified in Section 7.1.
"Common Securities Guarantee" means the guarantee agreement, dated
as of _________, 199_, of the Sponsor in respect of the Common Securities.
"Common Security Certificate" means a definitive certificate in
fully registered form, substantially in the form of Exhibit A-2, representing a
Common Security.
"Company Indemnified Person" means (a) any Regular Trustee; (b) any
Affiliate of any Regular Trustee; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Regular Trustee;
or (d) any officer, employee or agent of the Trust or its Affiliates.
"Corporate Trust Office" means the office of the Institutional
Trustee at which the corporate trust business of the Preferred Guarantee Trustee
shall, at any particular time, be principally administered, which office at the
date of execution of this Declaration located at
3
<PAGE>
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
"Covered Person" means: (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates; and (b) any Holder of Securities.
"Debenture Issuer" means Protective Life Corporation, a Delaware
corporation, in its capacity as issuer of the Debentures under the Indenture.
"Debenture Trustee" means AmSouth Bank (as successor by merger to
AmSouth Bank of Alabama, successor by conversion of charter to AmSouth Bank
N.A.), as trustee under the Indenture until a successor is appointed thereunder,
and thereafter such successor trustee.
"Debentures" means the series of Debentures to be issued by the
Debenture Issuer under the Indenture and to be held by the Institutional
Trustee, a specimen certificate for such series of Debentures being
substantially in the form of Exhibit B.
"Delaware Trustee" has the meaning set forth in Section 5.2.
"Definitive Preferred Security Certificates" has the meaning set
forth in Section 9.4.
"Direction" by a Person means a written direction signed:
(a) if the Person is a natural person, by that Person; or
(b) in any other case, in the name of such Person by one or more
Authorized Officers of such Person.
"Distribution" means a distribution payable to Holders of Securities
in accordance with Section 6.1.
"DTC" means The Depository Trust Company, the initial Clearing
Agency.
4
<PAGE>
"Event of Default" in respect of the Securities means an Event of
Default (as defined in the Indenture) has occurred and is continuing in respect
of the Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in Section
10.4(b).
"Global Certificate" has the meaning set forth in Section 9.4.
"Holder" means a Person in whose name a Certificate representing a
Security is registered, such Person being a beneficial owner within the meaning
of the Business Trust Act.
"Indemnified Person" means a Company Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the Subordinated Indenture dated as of June 1,
1994, from the Debenture Issuer to the Debenture Trustee, and any Subordinated
Indenture supplemental thereto pursuant to which the Debentures are to be issued
(including, without limitation, the Supplemental Indenture No. 5, dated as of
__________, 199_ between the Debenture Issuer and the Debenture Trustee).
"Institutional Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 5.3.
"Institutional Trustee Account" has the meaning set forth in Section
3.8(c).
"Investment Company" means an investment company as defined in the
Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940,
as amended from time to time, or any successor legislation.
"Legal Action" has the meaning set forth in Section 3.6(g).
"Majority in liquidation amount of the Securities" means, except as
provided in the terms of the Preferred Securities or by the Trust Indenture Act,
Holder(s) of outstanding Securities voting together as a single class or, as the
context may require, Holders of outstanding Preferred Securities or Holders of
outstanding Common Securities voting separately as a class, who are the record
owners of more than 50% of the aggregate liquidation
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amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined) of all outstanding Securities of
the relevant class.
"Ministerial Action" has the meaning set forth in Annex I.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person; provided that any
Officers' Certificate delivered with respect to compliance with a condition or
covenant provided for in this Declaration shall include:
(a) a statement that each officer signing such certificate has read
the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering such certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Paying Agent" has the meaning specified in Section 7.2.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Securities Guarantee" means the guarantee agreement,
dated as of __________, 199_, of the Sponsor in respect of the Preferred
Securities.
"Preferred Security" has the meaning specified in Section 7.1.
"Preferred Security Beneficial Owner" means, with respect to a Book
Entry Interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Clearing Agency, or on the books of a
Person maintaining an account with such
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Clearing Agency (directly as a Clearing Agency Participant or as an indirect
participant, in each case in accordance with the rules of such Clearing Agency).
"Preferred Security Certificate" means a certificate representing a
Preferred Security substantially in the form of Exhibit A-1.
"Purchase Agreement" means the Purchase Agreement for the offering
and sale of Preferred Securities in the form of Exhibit C.
"Quorum" means a majority of the Regular Trustees or, if there are
only two Regular Trustees, both of them.
"Regular Trustee" has the meaning set forth in Section 5.1.
"Related Party" means, with respect to the Sponsor, any direct or
indirect wholly owned subsidiary of the Sponsor or any other Person that owns,
directly or indirectly, 100% of the outstanding voting securities of the
Sponsor.
"Responsible Officer" means, with respect to the Institutional
Trustee, any officer within the Corporate Trust Office of the Institutional
Trustee, including any vice-president, any assistant vice-president, any
assistant secretary, the treasurer, any assistant treasurer or other officer of
the Corporate Trust Office of the Institutional Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's knowledge of
and familiarity with the particular subject.
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act.
"Securities" means the Common Securities and the Preferred
Securities.
"Securities Act" means the Securities Act of 1933, as amended from
time to time or any successor legislation.
"Special Event" has the meaning set forth in Annex I hereto.
"Sponsor" means Protective Life Corporation, a Delaware corporation,
or any successor entity in a merger, consolidation or amalgamation, in its
capacity as sponsor of the Trust.
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"Super Majority" has the meaning set forth in Section 2.6 (a) (ii).
"Tax Event" has the meaning set forth in Annex I hereto.
"10% in liquidation amount of the Securities" means, except as
provided in the terms of the Preferred Securities or by the Trust Indenture Act,
Holder(s) of outstanding Securities voting together as a single class or, as the
context may require, Holders of outstanding Preferred Securities or Holders of
outstanding Common Securities voting separately as a class, who are the record
owners of 10% or more of the aggregate liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus accrued
and unpaid Distributions to the date upon which the voting percentages are
determined) of all outstanding Securities of the relevant class.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation.
ARTICLE II.
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application. (a) This Declaration
is subject to the provisions of the Trust Indenture Act that are required to be
part of this Declaration and shall, to the extent applicable, be governed by
such provisions.
(b) The Institutional Trustee shall be the only Trustee which is a
Trustee for the purposes of the Trust Indenture Act.
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(c) If and to the extent that any provision of this Declaration
limits, qualifies or conflicts with the duties imposed by Section 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this Declaration
shall not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
SECTION 2.2. Lists of Holders of Securities. (a) The Sponsor and the
Regular Trustees on behalf of the Trust shall provide the Institutional Trustee
(i) within 14 days after each record date for payment of Distributions, a list,
in such form as the Institutional Trustee may reasonably require, of the names
and addresses of the Holders of the Securities ("List of Holders") as of such
record date, provided that neither the Sponsor nor the Regular Trustees, on
behalf of the Trust, shall be obligated to provide such List of Holders at any
time the List of Holders does not differ from the most recent List of Holders
given to the Institutional Trustee by the Sponsor and the Regular Trustees on
behalf of the Trust, and (ii) at any other time, within 30 days of receipt by
the Trust of a written request for a List of Holders as of a date no more than
14 days before such List of Holders is given to the Institutional Trustee. The
Institutional Trustee shall preserve, in as current a form as is reasonably
practicable, all information contained in Lists of Holders given to it or which
it receives in the capacity as Paying Agent (if acting in such capacity);
provided that the Institutional Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Institutional Trustee shall comply with its obligations
under Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3. Reports by the Institutional Trustee. Within 60 days
after May 15 of each year, the Institutional Trustee shall provide to the
Holders of the Preferred Securities such reports as are required by Section 313
of the Trust Indenture Act, if any, in the form and in the manner provided by
Section 313 of the Trust Indenture Act. The Institutional Trustee shall also
comply with the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4. Periodic Reports to Institutional Trustee. Each of the
Sponsor and the Regular Trustees, on behalf of the Trust, shall provide to the
Institutional Trustee and the Holders such documents, reports and information as
required by Section 314 (if any) of the Trust Indenture Act and the compliance
certificate required by such Section 314 of the Trust Indenture Act in the form,
in the manner and at the times required thereby.
SECTION 2.5. Evidence of Compliance with Conditions Precedent. Each
of the Sponsor and the Regular Trustees, on behalf of the Trust, shall provide
to the Institutional
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Trustee such evidence of compliance with any conditions precedent, if any,
provided for in this Declaration that relate to any of the matters set forth in
Section 314(c) of the Trust Indenture Act. Any certificate or opinion required
to be given by an officer pursuant to Section 314(c)(1) may be given in the form
of an Officers' Certificate.
SECTION 2.6. Events of Default; Waiver. (a) The Holders of a
Majority in liquidation amount of Preferred Securities may, by vote, on behalf
of the Holders of all of the Preferred Securities, waive any past Event of
Default in respect of the Preferred Securities and its consequences, provided
that, if the underlying Event of Default under the Indenture:
(i) is not waivable under the Indenture, the Event of Default under
the Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority in
principal amount of the holders of the Debentures (a "Super Majority") to
be waived under the Indenture, the Event of Default under the Declaration
may only be waived by the vote of the Holders of at least the proportion
in liquidation amount of the Preferred Securities that the relevant Super
Majority represents of the aggregate principal amount of the Debentures
outstanding.
The foregoing provisions of this Section 2.6(a) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such
default shall cease to exist, and any Event of Default with respect to the
Preferred Securities arising therefrom shall be deemed to have been cured, for
every purpose of this Declaration, but no such waiver shall extend to any
subsequent or other default or Event of Default with respect to the Preferred
Securities or impair any right consequent thereon. Any waiver by the Holders of
the Preferred Securities of an Event of Default with respect to the Preferred
Securities shall also be deemed to constitute a waiver by the Holders of the
Common Securities of any such Event of Default with respect to the Common
Securities for all purposes of this Declaration without any further act, vote,
or consent of the Holders of the Common Securities.
(b) The Holders of a Majority in liquidation amount of the Common
Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Indenture, except where the Holders of
the Common Securities are deemed to have waived such Event of Default
under the
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Declaration as provided below in this Section 2.6(b), the Event of Default
under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority to be waived,
except where the Holders of the Common Securities are deemed to have
waived such Event of Default under the Declaration as provided below in
this Section 2.6(b), the Event of Default under the Declaration may only
be waived by the vote of the Holders of at least the proportion in
liquidation amount of the Common Securities that the relevant Super
Majority represents of the aggregate principal amount of the Debentures
outstanding;
provided further, that each Holder of Common Securities will be deemed to have
waived any such Event of Default and all Events of Default with respect to the
Common Securities and its consequences until all Events of Default with respect
to the Preferred Securities have been cured, waived or otherwise eliminated, and
until such Events of Default have been so cured, waived or otherwise eliminated,
the Institutional Trustee will be deemed with respect to the Preferred
Securities to be acting solely on behalf of the Holders of the Preferred
Securities and only the Holders of the Preferred Securities will have the right
to direct the Institutional Trustee in accordance with the terms of the
Securities. The foregoing provisions of this Section 2.6(b) shall be in lieu of
Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such
Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby
expressly excluded from this Declaration and the Securities, as permitted by the
Trust Indenture Act. Subject to the foregoing provisions of this Section 2.6(b),
upon such waiver, any such default shall cease to exist and any Event of Default
with respect to the Common Securities arising therefrom shall be deemed to have
been cured for every purpose of this Declaration, but no such waiver shall
extend to any subsequent or other default or Event of Default with respect to
the Common Securities or impair any right consequent thereon.
(c) A waiver of an Event of Default under the Indenture by the
Institutional Trustee at the direction of the Holders of the Preferred
Securities constitutes a waiver of the corresponding Event of Default with
respect to the Preferred Securities under this Declaration. Any waiver of an
Event of Default under the Indenture by the Institutional Trustee at the
direction of the Holders of the Preferred Securities shall also be deemed to
constitute a waiver by the Holders of the Common Securities of the corresponding
Event of Default under this Declaration with respect to the Common Securities
for all purposes of this Declaration without further act, vote or consent of the
Holders of the Common Securities. The foregoing provisions of this Section
2.6(c) shall be in lieu of Section 316(a)(1)(B) of the Trust Indenture Act and
such Section 316(a)(1)(B) of the Trust Indenture Act is hereby expressly
excluded from this Declaration and the Securities, as permitted by the Trust
Indenture Act.
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SECTION 2.7. Event of Default; Notice. (a) The Institutional Trustee
shall, within 90 days after the occurrence of an Event of Default, transmit by
mail, first class postage prepaid, to the Holders of the Securities, notices of
all defaults with respect to the Securities actually known to a Responsible
Officer of the Institutional Trustee, unless such defaults have been cured
before the giving of such notice (the term "defaults" for the purposes of this
Section 2.7 being hereby defined to be an Event of Default as defined in the
Indenture, not including any periods of grace provided for therein and
irrespective of the giving of any notice provided therein); provided that,
except with respect to a default in the payment of principal of (or premium, if
any) or interest on any of the Debentures or in the payment of any sinking fund
installment established for the Debentures, the Institutional Trustee shall be
protected in withholding such notice if and so long as a Responsible Officer of
the Institutional Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of the Securities.
(b) The Institutional Trustee shall not be deemed to have knowledge
of any default except:
(i) a default under Sections 5.1 or 5.3 of the Indenture; or
(ii) any default as to which the Institutional Trustee shall have
received written notice or of which a Responsible Officer of the
Institutional Trustee charged with the administration of the Declaration
shall have actual knowledge.
ARTICLE III.
ORGANIZATION
SECTION 3.1. Name. The Trust is named "PLC Capital Trust III," as
such name may be modified from time to time by the Regular Trustees following
written notice to the Holders of Securities and the filing of a certificate of
amendment under the Business Trust Act. The Trust's activities may be conducted
under the name of the Trust or any other name deemed advisable by the Regular
Trustees.
SECTION 3.2. Office. The address of the principal office of the
Trust is 2801 Highway 280 South, Birmingham, Alabama 35223. On ten Business
Days' written notice to the Holders of Securities, the Regular Trustees may
designate another principal office.
SECTION 3.3. Purpose. The exclusive purposes and functions of the
Trust are
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(i) issuing the Preferred Securities and the Common Securities representing
undivided beneficial interests in the assets of the Trust, (ii) investing the
gross proceeds of the Securities in the Debentures and (iii) engaging in only
those other activities necessary or incidental thereto. The Trust shall not
borrow money, issue debt or reinvest proceeds derived from investments, pledge
any of its assets, or otherwise undertake (or permit to be undertaken) any
activity that would cause the Trust not to be classified for United States
federal income tax purposes as a grantor trust.
The Trustees, the Sponsor and the Holders of the Preferred
Securities and Common Securities (by their acceptance of such Securities) agree
not to take any position for United States federal income tax purposes which is
contrary to the classification of the Trust as a grantor trust.
SECTION 3.4. Authority. Subject to the limitations provided in this
Declaration and to the specific duties of the Institutional Trustee, the Regular
Trustees shall have exclusive and complete authority to carry out the purposes
of the Trust. An action taken by the Regular Trustees in accordance with their
powers shall constitute the act of and serve to bind the Trust and an action
taken by the Institutional Trustee on behalf of the Trust in accordance with its
powers shall constitute the act of and serve to bind the Trust. In dealing with
the Trustees acting on behalf of the Trust, no person shall be required to
inquire into the authority of the Trustees to bind the Trust. Persons dealing
with the Trust are entitled to rely conclusively on the power and authority of
the Trustees as set forth in this Declaration.
SECTION 3.5. Title to Property of the Trust. Except as provided in
Section 3.8 with respect to the Debentures and the Institutional Trustee
Account or as otherwise provided in this Declaration, legal title to all assets
of the Trust shall be vested in the Trust. The Holders shall not have legal
title to any part of the assets of the Trust, but shall have an undivided
beneficial interest in the assets of the Trust.
SECTION 3.6. Powers and Duties of the Regular Trustees. The Regular
Trustees shall have the exclusive power, duty and authority to cause the Trust
to engage in the following activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that
the Trust may issue no more than one series of Preferred Securities and no
more than one series of Common Securities, and, provided further, that
there shall be no interests in the Trust other than the Securities, and
the issuance of Securities shall be limited to a simultaneous issuance of
both Preferred Securities and Common Securities on the Closing Date;
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(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission the registration
statement on Form S-3 prepared by the Sponsor, including any
amendments thereto, pertaining to the Preferred Securities;
(ii) execute and file any documents prepared by the Sponsor,
or take any acts as determined by the Sponsor to be necessary or
advisable in order to qualify or register all or part of the
Preferred Securities in any State in which the Sponsor has
determined to qualify or register such Preferred Securities for
sale;
(iii) execute and file an application, prepared by the
Sponsor, to the New York Stock Exchange, Inc. or any other national
stock exchange or the Nasdaq Stock Market's National Market for
listing upon notice of issuance of any Preferred Securities pursuant
to Section 3.8;
(iv) execute and file with the Commission a registration
statement on Form 8-A, including any amendments thereto, prepared by
the Sponsor, relating to the registration of the Preferred
Securities under Section 12(b) of the Exchange Act; and
(v) execute and enter into the Purchase Agreement providing
for the sale of the Preferred Securities;
(c) to acquire the Debentures with the proceeds of the sale of the
Preferred Securities and the Common Securities; provided, however, that
the Regular Trustees shall cause legal title to the Debentures to be held
of record in the name of the Institutional Trustee for the benefit of the
Holders of the Preferred Securities and the Holders of Common Securities
pursuant to Section 3.8;
(d) to give the Sponsor and the Institutional Trustee prompt written
notice of the occurrence of a Tax Event; provided that the Regular
Trustees shall consult with the Sponsor and the Institutional Trustee
before taking or refraining from taking any Ministerial Action in relation
to a Tax Event;
(e) to establish a record date with respect to all actions to be
taken hereunder that require a record date to be established, including
and with respect to, for the purposes of Section 316(c) of the Trust
Indenture Act, Distributions, voting rights,
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redemptions and exchanges, and to issue relevant notices to the Holders of
Preferred Securities and Holders of Common Securities as to such actions
and applicable record dates;
(f) to take all actions and perform such duties as may be required
of the Regular Trustees pursuant to the terms of the Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate, resort
to legal action, or otherwise adjust claims or demands of or against the
Trust ("Legal Action"), unless pursuant to Section 3.8(e), the
Institutional Trustee has the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors,
and consultants and pay reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's obligations under
the Trust Indenture Act;
(j) to give the certificate required by Section 314(a)(4) of the
Trust Indenture Act to the Institutional Trustee, which certificate may be
executed by any Regular Trustee;
(k) to incur expenses that are necessary, appropriate, convenient or
incidental to carry out any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar and
transfer agent for the Securities;
(m) to give prompt written notice to the Holders of the Securities
of any notice received from the Debenture Issuer of its election to defer
payments of interest on the Debentures by extending the interest payment
period under the Indenture;
(n) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of
the State of Delaware and of each other jurisdiction in which such
existence is necessary to protect the limited liability of the Holders of
the Preferred Securities or to enable the Trust to effect the purposes for
which the Trust was created;
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(o) to take any action, not inconsistent with this Declaration or
with applicable law, that the Regular Trustees determine in their
discretion to be necessary or desirable in carrying out the activities of
the Trust as set out in this Section 3.6, including, but not limited to:
(i) causing the Trust not to be deemed to be an Investment
Company required to be registered under the Investment Company Act;
(ii) causing the Trust to continue to be classified for United
States federal income tax purposes as a grantor trust; and
(iii) cooperating with the Debenture Issuer to ensure that the
Debentures will be treated as indebtedness of the Debenture Issuer
for United States federal income tax purposes,
provided that such action does not adversely affect the interests of the
Holders;
(p) to take all action necessary to cause all applicable tax returns
and tax information reports that are required to be filed with respect to
the Trust to be duly prepared and filed by the Regular Trustees, on behalf
of the Trust; and
(q) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing.
The Regular Trustees must exercise the powers set forth in this
Section 3.6 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Regular Trustees shall not take any
action that is inconsistent with the purposes and functions of the Trust set
forth in Section 3.3.
Subject to this Section 3.6, the Regular Trustees shall have none of
the powers or the authority of the Institutional Trustee set forth in Section
3.8.
Any expenses incurred by the Regular Trustees pursuant to this
Section 3.6 shall be reimbursed by the Debenture Issuer.
SECTION 3.7. Prohibition of Actions by the Trust and the Trustees.
(a) The Trust shall not, and the Trustees (including the Institutional Trustee)
shall not, engage in any activity other than as required or authorized by this
Declaration. In particular, the Trust shall not and the Trustees (including the
Institutional Trustee) shall cause the Trust not to:
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(i) invest any proceeds received by the Trust from holding the
Debentures, but shall distribute all such proceeds to Holders of
Securities pursuant to the terms of this Declaration and of the
Securities;
(ii) acquire any assets other than as expressly provided herein;
(iii) possess Trust property for other than a Trust purpose as set
forth in Section 3.3;
(iv) make any loans or incur any indebtedness other than loans
represented by the Debentures;
(v) possess any power or otherwise act in such a way as to vary the
Trust assets or the terms of the Securities in any way whatsoever;
(vi) issue any securities or other evidences of beneficial ownership
of, or beneficial interest in, the Trust other than the Securities; or
(vii) other than as provided in this Declaration (including, without
limitation, Annex I), (A) direct the time, method and place of exercising
any trust or power conferred upon the Debenture Trustee with respect to
the Debentures, (B) waive any past default under the Indenture, (C)
exercise any right to rescind or annul any declaration that the principal
of all the Debentures shall be due and payable, or (D) consent to any
amendment, modification or termination of the Indenture or the Debentures
where such consent shall be required unless the Trust shall have received
an opinion of nationally recognized tax counsel to the effect that such
modification will not cause more than an insubstantial risk that for
United States federal income tax purposes the Trust will be classified as
other than a grantor trust as a result of such action.
SECTION 3.8. Powers and Duties of the Institutional Trustee. (a) The
legal title to the Debentures shall be owned by and held of record in the name
of the Institutional Trustee in trust for the benefit of the Holders of the
Securities. The right, title and interest of the Institutional Trustee to the
Debentures shall vest automatically in each Person who may hereafter be
appointed as Institutional Trustee in accordance with Section 5.6. Such vesting
and cessation of title shall be effective whether or not conveyancing documents
with regard to the Debentures have been executed and delivered.
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(b) The Institutional Trustee shall not transfer its right, title
and interest in the Debentures to the Regular Trustees or to the Delaware
Trustee (if the Institutional Trustee does not also act as Delaware Trustee).
(c) The Institutional Trustee shall:
(i) establish and maintain a segregated non-interest bearing
trust account (the "Institutional Trustee Account") in the name of
and under the exclusive control of the Institutional Trustee on
behalf of the Holders of the Securities and, upon the receipt of
payments of funds made in respect of the Debentures held by the
Institutional Trustee, deposit such funds into the Institutional
Trustee Account and make payments to the Holders of the Preferred
Securities and Holders of the Common Securities from the
Institutional Trustee Account in accordance with Section 6.1. Funds
in the Institutional Trustee Account shall be held uninvested until
disbursed in accordance with this Declaration. The Institutional
Trustee Account shall be an account that is maintained with a
banking institution the rating on whose long-term unsecured
indebtedness is at least equal to the rating assigned to the
Preferred Securities by a "nationally recognized statistical rating
organization," as that term is defined for purposes of Rule
436(g)(2) under the Securities Act;
(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect the redemption of the Preferred
Securities and the Common Securities pursuant to this Declaration
(including, without limitation, Annex I) to the extent the
Debentures are redeemed or mature; and
(iii) upon written notice of distribution issued by the
Regular Trustees in accordance with the terms of the Securities,
engage in such ministerial activities as shall be necessary or
appropriate to effect the distribution of the Debentures to Holders
of Securities upon the occurrence of certain special events (as may
be defined in the terms of the Securities) arising from a change in
law or a change in legal interpretation or other specified
circumstances pursuant to the terms of the Securities.
(d) The Institutional Trustee shall take all actions and perform
such duties as may be specifically required of the Institutional Trustee
pursuant to the terms of the Securities.
(e) The Institutional Trustee shall take any Legal Action which
arises out of or in connection with an Event of Default of which a Responsible
Officer of the Institutional
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Trustee has actual knowledge of the Institutional Trustee's duties and
obligations under this Declaration or the Trust Indenture Act.
(f) The Institutional Trustee shall not resign as a Trustee unless
either:
(i) the Trust has been completely liquidated and the proceeds
of the liquidation distributed to the Holders of Securities pursuant
to the terms of the Securities; or
(ii) a Successor Institutional Trustee (as defined in Section
5.6) has been appointed and has accepted that appointment in
accordance with Section 5.6.
(g) The Institutional Trustee shall have the legal power to exercise
all of the rights, powers and privileges of a holder of Debentures under the
Indenture and, if an Event of Default actually known to a Responsible Officer of
the Institutional Trustee occurs and is continuing, the Institutional Trustee
shall, for the benefit of Holders of the Securities, enforce its rights as
holder of the Debentures subject to the rights of the Holders pursuant to the
terms of such Securities.
(h) Subject to this Section 3.8, the Institutional Trustee shall
have none of the duties, liabilities, powers or the authority of the Regular
Trustees set forth in Section 3.6.
The Institutional Trustee must exercise the powers set forth in this
Section 3.8 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Institutional Trustee shall not take
any action that is inconsistent with the purposes and functions of the Trust set
out in Section 3.3.
SECTION 3.9. Certain Duties and Responsibilities of the
Institutional Trustee. (a) The Institutional Trustee, before the occurrence of
any Event of Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Declaration and no implied covenants shall be read into this
Declaration against the Institutional Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.6) of which a
Responsible Officer of the Institutional Trustee has actual knowledge, the
Institutional Trustee shall exercise such of the rights and powers vested in it
by this Declaration, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
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(b) No provision of this Declaration shall be construed to relieve
the Institutional Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Institutional Trustee
shall be determined solely by the express provisions of this
Declaration and the Institutional Trustee shall not be liable except
for the performance of such duties and obligations as are
specifically set forth in this Declaration, and no implied covenants
or obligations shall be read into this Declaration against the
Institutional Trustee; and
(B) in the absence of bad faith on the part of the
Institutional Trustee, the Institutional Trustee may conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Institutional Trustee and conforming to the
requirements of this Declaration; but in the case of any such
certificates or opinions that by any provision hereof are
specifically required to be furnished to the Institutional Trustee,
the Institutional Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this
Declaration;
(ii) the Institutional Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Institutional
Trustee, unless it shall be proved that the Institutional Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Institutional Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of not less than a Majority in
liquidation amount of the Securities relating to the time, method and
place of conducting any proceeding for any remedy available to the
Institutional Trustee, or exercising any trust or power conferred upon the
Institutional Trustee under this Declaration;
(iv) no provision of this Declaration shall require the
Institutional Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in
the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Declaration or indemnity
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reasonably satisfactory to the Institutional Trustee against such risk or
liability is not reasonably assured to it;
(v) the Institutional Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and the
Institutional Trustee Account shall be to deal with such property in a
similar manner as the Institutional Trustee deals with similar property
for its own account, subject to the protections and limitations on
liability afforded to the Institutional Trustee under this Declaration and
the Trust Indenture Act;
(vi) the Institutional Trustee shall have no duty or liability for
or with respect to the value, genuineness, existence or sufficiency of the
Debentures or the payment of any taxes or assessments levied thereon or in
connection therewith;
(vii) the Institutional Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree with the
Sponsor. Money held by the Institutional Trustee need not be segregated
from other funds held by it except in relation to the Institutional
Trustee Account maintained by the Institutional Trustee pursuant to
Section 3.8(c)(i) and except to the extent otherwise required by law; and
(viii) the Institutional Trustee shall not be responsible for
monitoring the compliance by the Regular Trustees or the Sponsor with
their respective duties under this Declaration, nor shall the
Institutional Trustee be liable for any default or misconduct of the
Regular Trustees or the Sponsor.
SECTION 3.10. Certain Rights of Institutional Trustee. (a) Subject
to the provisions of Section 3.9:
(i) the Institutional Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and
to have been signed, sent or presented by the proper party or parties;
(ii) any direction or act of the Sponsor or the Regular Trustees
contemplated by this Declaration shall be sufficiently evidenced by a
Direction or an Officers' Certificate;
(iii) whenever, in the administration of this Declaration, the
Institutional Trustee shall deem it desirable that a matter be proved or
established before taking,
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suffering or omitting any action hereunder, the Institutional Trustee
(unless other evidence is herein specifically prescribed) may, in the
absence of bad faith on its part, request and conclusively rely upon an
Officers' Certificate which, upon receipt of such request, shall be
promptly delivered by the Sponsor or the Regular Trustees;
(iv) the Institutional Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or securities
laws) or any rerecording, refiling or registration thereof;
(v) the Institutional Trustee may consult with counsel or other
experts and the advice or opinion of such counsel and experts with respect
to legal matters or advice within the scope of such experts' area of
expertise shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good
faith and in accordance with such advice or opinion, it being understood
that such counsel may be counsel to the Sponsor or any of its Affiliates,
and may include any of its employees. The Institutional Trustee shall have
the right at any time to seek instructions concerning the administration
of this Declaration from any court of competent jurisdiction;
(vi) the Institutional Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration at
the request or direction of any Holder, unless such Holder shall have
provided to the Institutional Trustee security and indemnity, reasonably
satisfactory to the Institutional Trustee, against the costs, expenses
(including attorneys' fees and expenses and the expenses of the
Institutional Trustee's agents, nominees or custodians) and liabilities
that might be incurred by it in complying with such request or direction,
including such reasonable advances as may be requested by the
Institutional Trustee provided, that, nothing contained in this Section
3.10(a)(vi) shall be taken to relieve the Institutional Trustee, upon the
occurrence of an Event of Default, of its obligation to exercise the
rights and powers vested in it by this Declaration;
(vii) the Institutional Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Institutional Trustee, in
its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit;
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(viii) the Institutional Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents, custodians, nominees or attorneys and the Institutional
Trustee shall not be responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care by it hereunder;
(ix) any action taken by the Institutional Trustee or its agents
hereunder shall bind the Trust and the Holders of the Securities, and the
signature of the Institutional Trustee or its agents alone shall be
sufficient and effective to perform any such action and no third party
shall be required to inquire as to the authority of the Institutional
Trustee to so act or as to its compliance with any of the terms and
provisions of this Declaration, both of which shall be conclusively
evidenced by the Institutional Trustee's or its agent's taking such
action;
(x) whenever in the administration of this Declaration the
Institutional Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Institutional Trustee (i) may request instructions from the
Holders of the Securities which instructions may only be given by the
Holders of the same proportion in liquidation amount of the Securities as
would be entitled to direct the Institutional Trustee under the terms of
the Securities in respect of such remedy, right or action, (ii) may
refrain from enforcing such remedy or right or taking such other action
until such instructions are received, and (iii) shall be protected in
conclusively relying on or acting in accordance with such instructions;
and
(xi) except as otherwise expressly provided by this Declaration, the
Institutional Trustee shall not be under any obligation to take any action
that is discretionary under the provisions of this Declaration.
(b) No provision of this Declaration shall be deemed to impose any
duty or obligation on the Institutional Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Institutional Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Institutional
Trustee shall be construed to be a duty.
SECTION 3.11. Delaware Trustee. Notwithstanding any other provision
of this Declaration other than Section 5.2, the Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities of the Regular Trustees or the Institutional Trustee
described in this Declaration. Except as set forth
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in Section 5.2, the Delaware Trustee shall be a Trustee for the sole and limited
purpose of fulfilling the requirements of Section 3807 of the Business Trust
Act.
SECTION 3.12. Execution of Documents. Unless otherwise determined by
the Regular Trustees, and except as otherwise required by the Business Trust
Act, any Regular Trustee is authorized to execute on behalf of the Trust any
documents that the Regular Trustees have the power and authority to execute
pursuant to Section 3.6; provided that, the registration statement referred to
in Section 3.6(b)(i), including any amendments thereto, shall be signed by all
of the Regular Trustees.
SECTION 3.13. Not Responsible for Recitals or Issuance of
Securities. The recitals contained in this Declaration and the Securities shall
be taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as to
the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Declaration or the Securities.
SECTION 3.14. Duration of Trust. The Trust, unless terminated
earlier pursuant to the provisions of Article VIII hereof, shall have existence
for fifty-five (55) years from the issuance of the Debentures.
SECTION 3.15. Mergers. (a) The Trust may not consolidate,
amalgamate, merge with or into, or be replaced by, or convey, transfer or lease
its properties and assets substantially as an entirety to any corporation or
other body, except as described in Sections 3.15(b) and (c).
(b) The Trust may, with the consent of the Regular Trustees (or, if
there are more than two, a majority of the Regular Trustees) and without the
consent of the Holders of the Securities, the Delaware Trustee or the
Institutional Trustee, consolidate, amalgamate, merge with or into, or be
replaced by a trust organized as such under the laws of any State; provided
that:
(i) such successor entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of the Trust
under the Securities; or
(B) substitutes for the Preferred Securities other securities
having substantially the same terms as the Preferred Securities (the
"Successor Securities") so long as the Successor Securities rank the
same as the Preferred
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Securities rank with respect to Distributions and payments upon
liquidation, redemption and otherwise;
(ii) the Debenture Issuer expressly acknowledges a trustee of the
Successor Entity that possesses the same powers and duties as the
Institutional Trustee as the Holder of the Debentures;
(iii) the Preferred Securities or any Successor Securities are
listed, or any Successor Securities will be listed upon notification of
issuance, on any national securities exchange or with another organization
on which the Preferred Securities are then listed or quoted;
(iv) such merger, consolidation, amalgamation or replacement does
not cause the Preferred Securities (including any Successor Securities) to
be downgraded by any nationally recognized statistical rating
organization;
(v) such merger, consolidation, amalgamation or replacement does not
adversely affect the rights, preferences and privileges of the Holders of
the Securities (including any Successor Securities) in any material
respect (other than with respect to any dilution of such Holders'
interests in the Preferred Securities as a result of such merger,
consolidation, amalgamation or replacement);
(vi) such Successor Entity has a purpose identical to that of the
Trust;
(vii) prior to such merger, consolidation, amalgamation or
replacement, the Sponsor has received an opinion of a nationally
recognized independent counsel to the Trust experienced in such matters to
the effect that:
(A) such merger, consolidation, amalgamation or replacement
does not adversely affect the rights, preferences and privileges of
the Holders of the Securities (including any Successor Securities)
in any material respect (other than with respect to any dilution of
the Holders' interest in the new entity); and
(B) following such merger, consolidation, amalgamation or
replacement, neither the Trust nor the Successor Entity will be
required to register as an Investment Company;
(C) following such merger, consolidation, amalgamation or
replacement, the Trust (or the Successor Entity) will continue to be
classified as a grantor trust for United States federal income tax
purposes; and
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(viii) the Sponsor guarantees the obligations of such Successor
Entity under the Successor Securities at least to the extent provided by
the Preferred Securities Guarantee.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except
with the consent of Holders of 100% in liquidation amount of the Securities,
consolidate, amalgamate, merge with or into, or be replaced by any other entity
or permit any other entity to consolidate, amalgamate, merge with or into, or
replace it if such consolidation, amalgamation, merger or replacement would
cause the Trust or Successor Entity to be classified as other than a grantor
trust for United States federal income tax purposes.
ARTICLE IV.
SPONSOR
SECTION 4.1. Sponsor's Purchase of Common Securities. On the Closing
Date at the same time as the Preferred Securities are sold, the Sponsor will
purchase all of the Common Securities issued by the Trust, in an amount at least
equal to 3% of the aggregate capital of the Trust after giving effect to such
sale of Preferred Securities.
SECTION 4.2. Responsibilities of the Sponsor. In connection with the
issue and sale of the Preferred Securities, the Sponsor shall have the exclusive
right and responsibility to engage in the following activities:
(a) to prepare for filing by the Trust with the Commission a
registration statement on Form S-3 in relation to the Preferred
Securities, including any amendments thereto;
(b) to determine the States in which to take appropriate action to
qualify or register for sale all or part of the Preferred Securities and
to do any and all such acts, other than actions which must be taken by the
Trust, advise the Trust of actions it must take, and prepare for execution
and filing any documents to be executed and filed by the Trust, as the
Sponsor deems necessary or advisable in order to comply with the
applicable laws of any such States;
(c) to prepare for filing by the Trust an application to the New
York Stock Exchange or any other national stock exchange or the Nasdaq
National Market for listing upon notice of issuance of any Preferred
Securities;
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(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the
Preferred Securities under Section 12(b) of the Exchange Act, including
any amendments thereto; and
(e) to negotiate the terms of the Purchase Agreement providing for
the sale of the Preferred Securities.
ARTICLE V.
TRUSTEES
SECTION 5.1. Number of Trustees. The number of Trustees initially
shall be three (3), and:
(a) at any time before the issuance of any Securities, the Sponsor
may, by written instrument, increase or decrease the number of Trustees;
and
(b) after the issuance of any Securities, the number of Trustees may
be increased or decreased by vote of the Holders of a Majority in
liquidation amount of the Common Securities voting as a class at a meeting
of the Holders of the Common Securities; provided, however, that the
number of Trustees shall in no event be less than two (2); provided
further that (1) one Trustee meets the requirements of Sections 5.2(a) or
(b); (2) there shall be at least one Trustee who is an employee or officer
of, or is affiliated with, the Sponsor (a "Regular Trustee"); and (3) one
Trustee shall be the Institutional Trustee for so long as this Declaration
is required to qualify as an indenture under the Trust Indenture Act, and
such Trustee may also serve as Delaware Trustee if it meets the applicable
requirements.
SECTION 5.2. Delaware Trustee. If required by the Business Trust
Act, one Trustee (the "Delaware Trustee") shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) if not a natural person, an entity which has its principal place
of business in the State of Delaware, and otherwise meets the requirements
of applicable law, provided that, if the Institutional Trustee has its
principal place of business in the State of Delaware and otherwise meets
the requirements of applicable law, then the Institutional Trustee shall
also be the Delaware Trustee and Section 3.11 shall have no application.
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(c) The initial Delaware Trustee shall be:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
SECTION 5.3. Institutional Trustee; Eligibility. (a) There shall at
all times be one Trustee which shall act as Institutional Trustee and which
shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation or Person permitted by the
Commission to act as an institutional trustee under the Trust Indenture
Act, authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination by Federal,
State, Territorial or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to
the requirements of the supervising or examining authority referred to
above, then for the purposes of this Section 5.3(a)(ii), the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Institutional Trustee shall cease to be
eligible to so act under Section 5.3(a), the Institutional Trustee shall
immediately resign in the manner and with the effect set forth in Section
5.6(c).
(c) If the Institutional Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Institutional Trustee and the Holder of the Common Securities
(as if it were the obligor referred to in Section 310(b) of the Trust Indenture
Act) shall in all respects comply with the provisions of Section 310(b) of the
Trust Indenture Act.
(d) The Preferred Securities Guarantee shall be deemed to be
specifically described in this Declaration for purposes of clause (i) of the
first provision contained in Section 310(b) of the Trust Indenture Act.
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(e) The initial Institutional Trustee shall be:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
SECTION 5.4. Certain Qualifications of Regular Trustees and Delaware
Trustee Generally. Each Regular Trustee and the Delaware Trustee (unless the
Institutional Trustee also acts as Delaware Trustee) shall be either a natural
person who is at least 21 years of age or a legal entity that shall act through
one or more Authorized Officers.
SECTION 5.5. Regular Trustees. The initial Regular Trustees shall
be:
Richard J. Bielen
c/o Protective Life Corporation
2801 Highway 280 South
Birmingham, Alabama 35223
Jerry W. DeFoor
c/o Protective Life Corporation
2801 Highway 280 South
Birmingham, Alabama 35223
(a) Except as expressly set forth in this Declaration and except if
a meeting of the Regular Trustees is called with respect to any matter over
which the Regular Trustees have power to act, any power of the Regular Trustees
may be exercised by, or with the consent of, any one such Regular Trustee.
(b) As more specifically provided in Section 5.10, a Regular Trustee
may, by power of attorney consistent with applicable law, delegate to any other
natural person over the age of 21 his or her power for the purposes of signing
any documents which the Regular Trustees have power and authority to cause the
Trust to execute pursuant to Section 3.6.
SECTION 5.6. Appointment, Removal and Resignation of Trustees. (a)
subject to Section 5.6(b), Trustees may be appointed or removed without cause at
any time:
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(i) until the issuance of any Securities, by written instrument
executed by the Sponsor; and
(ii) after the issuance of any Securities, by vote of the Holders of
a Majority in liquidation amount of the Common Securities voting as a
class at a meeting of the Holders of the Common Securities.
(b) (i) The Trustee that acts as Institutional Trustee shall not be
removed in accordance with Section 5.6(a) until a Successor Institutional
Trustee (a "Successor Institutional Trustee") has been appointed and has
accepted such appointment by written instrument executed by such Successor
Institutional Trustee and delivered to the Regular Trustees and the
Sponsor; and
(ii) the Trustee that acts as Delaware Trustee shall not be removed
in accordance with this Section 5.6(a) until a successor Trustee
possessing the qualifications to act as Delaware Trustee under Sections
5.2 and 5.4 (a "Successor Delaware Trustee") has been appointed and has
accepted such appointment by written instrument executed by such Successor
Delaware Trustee and delivered to the Regular Trustees and the Sponsor.
(c) A Trustee appointed to office shall hold office until his
successor shall have been appointed or until his death, removal or resignation.
Any Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing signed by such Trustee and delivered to
the Sponsor and the Trust, which resignation shall take effect upon such
delivery or upon such later date as is specified therein; provided, however,
that:
(i) No such resignation of the Trustee that acts as the
Institutional Trustee shall be effective:
(A) until a Successor Institutional Trustee has been appointed
and has accepted such appointment by instrument executed by such
Successor Institutional Trustee and delivered to the Trust, the
Sponsor and the resigning Institutional Trustee; or
(B) until the assets of the Trust have been completely
liquidated and the proceeds thereof distributed to the holders of
the Securities; and
(ii) no such resignation of the Trustee that acts as the Delaware
Trustee shall be effective until a Successor Delaware Trustee has been
appointed and has accepted such
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appointment by instrument executed by such Successor Delaware Trustee and
delivered to the Trust, the Sponsor and the resigning Delaware Trustee.
(d) The Holders of the Common Securities shall use their best
efforts to promptly appoint a Successor Delaware Trustee or Successor
Institutional Trustee, as the case may be, if the Institutional Trustee or the
Delaware Trustee delivers an instrument of resignation in accordance with this
Section 5.6.
(e) If no Successor Institutional Trustee or Successor Delaware
Trustee shall have been appointed and accepted appointment as provided in this
Section 5.6 within 60 days after delivery to the Sponsor and the Trust of an
instrument of resignation, the resigning Institutional Trustee or Delaware
Trustee, as applicable, may petition any court of competent jurisdiction for
appointment of a Successor Institutional Trustee or Successor Delaware Trustee.
Such court may thereupon, after prescribing such notice, if any, as it may deem
proper and prescribe, appoint a Successor Institutional Trustee or Successor
Delaware Trustee, as the case may be.
(f) No Institutional Trustee or Delaware Trustee shall be liable for
the acts or omissions to act of any Successor Institutional Trustee or Successor
Delaware Trustee, as the case may be.
SECTION 5.7. Vacancies Among Trustees. If a Trustee ceases to hold
office for any reason and the number of Trustees is not reduced pursuant to
Section 5.1, or if the number of Trustees is increased pursuant to Section 5.1,
a vacancy shall occur. A resolution certifying the existence of such vacancy by
the Regular Trustees (or, if there are more than two, a majority of the Regular
Trustees) shall be conclusive evidence of the existence of such vacancy. Any
such vacancy shall be filled with a Trustee appointed in accordance with Section
5.6.
SECTION 5.8. Effect of Vacancies. The death, resignation,
retirement, removal, bankruptcy, dissolution, liquidation, incompetence or
incapacity to perform the duties of a Trustee shall not operate to annul the
Trust. Whenever a vacancy in the number of Regular Trustees shall occur, until
such vacancy is filled by the appointment of a Regular Trustee in accordance
with Section 5.6, the Regular Trustees in office, regardless of their number,
shall have all the powers granted to the Regular Trustees and shall discharge
all the duties imposed upon the Regular Trustees by this Declaration.
SECTION 5.9. Meetings. If there is more than one Regular Trustee,
meetings of the Regular Trustees shall be held from time to time upon the call
of any Regular Trustee. Regular meetings of the Regular Trustees may be held at
a time and place fixed by resolution
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of the Regular Trustees. Notice of any in-person meetings of the Regular
Trustees shall be hand delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than 48 hours before
such meeting. Notice of any telephonic meetings of the Regular Trustees or any
committee thereof shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier) not less than 24
hours before such meeting. Notices shall contain a brief statement of the time,
place and anticipated purposes of the meeting. The presence (whether in person
or by telephone) of a Regular Trustee at a meeting shall constitute a waiver of
notice of such meeting except where a Regular Trustee attends a meeting for the
express purpose of objecting to the transaction of any activity on the ground
that the meeting has not been lawfully called or convened. Unless provided
otherwise in this Declaration, any action of the Regular Trustees may be taken
at a meeting by vote of a majority of the Regular Trustees present (whether in
person or by telephone) and eligible to vote with respect to such matter,
provided that a Quorum is present, or without a meeting by the unanimous written
consent of the Regular Trustees. In the event there is only one Regular Trustee,
any and all action of such Regular Trustee shall be evidenced by a written
consent of such Regular Trustee.
SECTION 5.10. Delegation of Power. (a) Any Regular Trustee may, by
power of attorney consistent with applicable law, delegate to any other natural
person over the age of 21 his or her power for the purpose of executing any
documents contemplated in Section 3.6, including any registration statement or
amendment thereto filed with the Commission, or making any other governmental
filing; and
(b) the Regular Trustees shall have power to delegate from time to
time to such of their number or to officers of the Trust the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Regular Trustees or otherwise as the Regular Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
SECTION 5.11. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Institutional Trustee or the Delaware
Trustee, as the case may be, may be merged or converted or with which either may
be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Institutional Trustee or the Delaware Trustee, as the
case may be, shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Institutional Trustee or
the Delaware Trustee, as the case may be, shall be the successor of the
Institutional Trustee or the Delaware Trustee, as the case may be, hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
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ARTICLE VI.
DISTRIBUTIONS
SECTION 6.1. Distributions. Holders shall receive Distributions (as
defined herein) in accordance with the applicable terms of the relevant Holder's
Securities. Distributions shall be made on the Preferred Securities and the
Common Securities in accordance with the preferences set forth in their
respective terms. If and to the extent that the Debenture Issuer makes a payment
of interest (including Compounded Interest (as defined in the Indenture) and
Additional Interest (as defined in the Indenture)), premium and/or principal on
the Debentures held by the Institutional Trustee (the amount of any such payment
being a "Payment Amount"), the Institutional Trustee shall and is directed, to
the extent funds are available for that purpose, to make a distribution (a
"Distribution") of such Payment Amount to Holders.
ARTICLE VII.
ISSUANCE OF SECURITIES
SECTION 7.1. General Provisions Regarding Securities. (a) The
Regular Trustees shall, on behalf of the Trust, issue one class of preferred
securities representing undivided beneficial interests in the assets of the
Trust having such terms as are set forth in Annex I (the "Preferred Securities")
and one class of common securities representing undivided beneficial interests
in the assets of the Trust having such terms as are set forth in Annex I (the
"Common Securities"). The Trust shall issue no securities or other interests in
the assets of the Trust other than the Preferred Securities and the Common
Securities.
(b) The Certificates shall be signed on behalf of the Trust by a
Regular Trustee. Such signature shall be the manual signature of any present or
any future Regular Trustee. In case any Regular Trustee of the Trust who shall
have signed any of the Securities shall cease to be such Regular Trustee before
the Certificates so signed shall be delivered by the Trust, such Certificates
nevertheless may be delivered as though the person who signed such Certificates
had not ceased to be such Regular Trustee; and any Certificate may be signed on
behalf of the Trust by such persons who, at the actual date of execution of such
Security, shall be the Regular Trustees of the Trust, although at the date of
the execution and delivery of the Declaration any such person was not such a
Regular Trustee. Certificates shall be printed, lithographed or engraved or may
be produced in any other manner as is reasonably acceptable to the Regular
Trustees, as evidenced by their execution thereof, and may have such letters,
numbers or other marks of identification or designation and such legends or
endorsements as
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the Regular Trustees may deem appropriate, or as may be required to comply with
any law or with any rule or regulation of any stock exchange on which Securities
may be listed, or to conform to usage.
(c) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(d) Upon issuance of the Securities as provided in this Declaration,
the Securities so issued shall be deemed to be validly issued, fully paid and
(subject to Section 10.1) non-assessable.
(e) Every Person, by virtue of having become a Holder or a Preferred
Security Beneficial Owner in accordance with the terms of this Declaration,
shall be deemed to have expressly assented and agreed to the terms of, and shall
be bound by, this Declaration.
SECTION 7.2. Paying Agent. In the event that the Preferred
Securities are not in book-entry only form, the Trust shall maintain in the
borough of Manhattan, The City of New York, State of New York, an office or
agency where the Preferred Securities may be presented for payment ("Paying
Agent"), and any such Paying Agent shall comply with Section 317(b) of the Trust
Indenture Act. The Trust may appoint the Paying Agent and may appoint one or
more additional paying agents in such other locations as it shall determine. The
term "Paying Agent" includes any such additional paying agent. The Trust may
change any Paying Agent without prior notice to any Holder. The Trust shall
notify the Institutional Trustee of the name and address of any Agent not a
party to this Declaration. If the Trust fails to appoint or maintain another
entity as Paying Agent, the Institutional Trustee shall act as such. The Trust
or any of its Affiliates may act as Paying Agent. The Institutional Trustee
shall initially act as Paying Agent for the Preferred Securities and the Common
Securities.
ARTICLE VIII.
TERMINATION OF TRUST
SECTION 8.1. Termination of Trust. (a) The Trust shall dissolve in
the earlier to occur of 55 years after the issuance of the Debentures or:
(i) upon the bankruptcy of the Sponsor;
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(ii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor or the revocation of the Sponsor's
charter and the expiration of 90 days after the date of revocation without
a reinstatement thereof;
(iii) upon the consent of a Majority in liquidation amount of the
Securities affected thereby voting together as a single class to dissolve
the Trust;
(iv) upon the entry of a decree of judicial dissolution of the
Holder of the Common Securities, the Sponsor or the Trust;
(v) when all of the Securities shall have been called for redemption
and the amounts necessary for redemption thereof shall have been paid to
the Holders, in each case in accordance with the terms of the Securities;
(vi) at the election of the Sponsor (which is wholly within its sole
discretion) at any time pursuant to which the Trust shall have been
dissolved in accordance with the terms of the Securities as set forth in
Annex I and all of the Debentures endorsed thereon shall have been
distributed to the Holders of Securities in exchange for all of the
Securities; or
(vii) before the issuance of any Securities, with the consent of all
of the Regular Trustees and the Sponsor.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a) and upon completion of the winding-up of the Trust
and payment of all liabilities of the Trust, the Trustees shall file a
certificate of cancellation with the Secretary of State of the State of Delaware
and the Trust shall terminate.
(c) The provisions of Article X shall survive the termination of the
Trust.
ARTICLE IX.
TRANSFER OF INTERESTS
SECTION 9.1. Transfer of Securities. (a) Securities may only be
transferred, in whole or in part, in accordance with the terms and conditions
set forth in this Declaration and in the terms of the Securities. Any transfer
or purported transfer of any Security not made in accordance with this
Declaration shall be null and void.
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(b) Subject to this Article IX, Preferred Securities shall be freely
transferable.
(c) Subject to this Article IX, the Sponsor and any Related Party
may only transfer Common Securities to the Sponsor or a Related Party of the
Sponsor; provided that, any such transfer is subject to the condition precedent
that the transferor obtain the written opinion of nationally recognized
independent counsel experienced in such matters that such transfer would not
cause more than an insubstantial risk that:
(i) the Trust would not continue to be classified for United States
federal income tax purposes as a grantor trust; and
(ii) the Trust would be an Investment Company or the transferee
would become an Investment Company.
SECTION 9.2. Transfer of Certificates. The Regular Trustees shall
provide for the registration of Certificates and of transfers of Certificates,
which will be effected without charge but only upon payment (with such indemnity
as the Regular Trustees may require) in respect of any tax or other government
charges that may be imposed in relation to it. Upon surrender for registration
of transfer of any Certificate, the Regular Trustees shall cause one or more new
Certificates to be issued in the name of the designated transferee or
transferees. Every Certificate surrendered for registration of transfer shall be
accompanied by a written instrument of transfer in form satisfactory to the
Regular Trustees duly executed by the Holder or such Holder's attorney duly
authorized in writing. Each Certificate surrendered for registration of transfer
shall be canceled by the Regular Trustees. A transferee of a Certificate shall
be entitled to the rights and subject to the obligations of a Holder hereunder
upon the receipt by such transferee of a Certificate. By acceptance of a
Certificate, each transferee shall be deemed to have agreed to be bound by this
Declaration.
SECTION 9.3. Deemed Security Holders. The Trustees may treat the
Person in whose name any Certificate shall be registered on the books and
records of the Trust as the sole holder of such Certificate and of the
Securities represented by such Certificate for purposes of receiving
Distributions and for all other purposes whatsoever and, accordingly, shall not
be bound to recognize any equitable or other claim to or interest in such
Certificate or in the Securities represented by such Certificate on the part of
any Person, whether or not the Trust shall have actual or other notice thereof.
SECTION 9.4. Book Entry Interests. Unless otherwise specified in the
terms of the Preferred Securities, the Preferred Securities Certificates, on
original issuance, will be issued in the form of one or more fully registered,
global Preferred Security Certificates (each a "Global Certificate"), to be
delivered to DTC, the initial Clearing Agency, by, or on behalf
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of, the Trust. Such Global Certificate(s) shall initially be registered on the
books and records of the Trust in the name of Cede & Co., the nominee of DTC,
and no Preferred Security Beneficial Owner will receive a definitive Preferred
Security Certificate representing such Preferred Security Beneficial Owner's
interests in such Global Certificate(s), except as provided in Section 9.7.
Unless and until definitive, fully registered Preferred Security Certificates
(the "Definitive Preferred Security Certificates") have been issued to the
Preferred Security Beneficial Owners pursuant to Section 9.7:
(a) the provisions of this Section 9.4 shall be in full force and
effect;
(b) the Trust and the Trustees shall be entitled to deal with the
Clearing Agency for all purposes of this Declaration (including the
payment of Distributions on the Global Certificate(s) and receiving
approvals, votes or consents hereunder) as the Holder of the Preferred
Securities and the sole holder of the Global Certificate(s) and shall have
no obligation to the Preferred Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.4 conflict
with any other provisions of this Declaration, the provisions of this
Section 9.4 shall control; and
(d) the rights of the Preferred Security Beneficial Owners shall be
exercised only through the Clearing Agency and shall be limited to those
established by law and agreements between such Preferred Security
Beneficial Owners and the Clearing Agency and/or the Clearing Agency
Participants and the Clearing Agency shall receive and transmit payments
of Distributions on the Global Certificates to such Clearing Agency
Participants. DTC will make book entry transfers among the Clearing Agency
Participants.
SECTION 9.5. Notices to Clearing Agency. Whenever a notice or other
communication to the Preferred Security Holders is required under this
Declaration, unless and until Definitive Preferred Security Certificates shall
have been issued to the Preferred Security Beneficial Owners pursuant to Section
9.7, the Regular Trustees shall give all such notices and communications
specified herein to be given to the Preferred Security Holders to the Clearing
Agency, and shall have no notice obligations to the Preferred Security
Beneficial Owners.
SECTION 9.6. Appointment of Successor Clearing Agency. If any
Clearing Agency elects to discontinue its services as securities depositary with
respect to the Preferred Securities, the Regular Trustees may, in their sole
discretion, appoint a successor Clearing Agency with respect to such Preferred
Securities.
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SECTION 9.7. Definitive Preferred Security Certificates. If:
(a) a Clearing Agency elects to discontinue its services as
securities depositary with respect to the Preferred Securities and a
successor Clearing Agency is not appointed within 90 days after such
discontinuance pursuant to Section 9.6; or
(b) the Regular Trustees elect after consultation with the Sponsor
to terminate the book entry system through the Clearing Agency with
respect to the Preferred Securities, then:
(c) Definitive Preferred Security Certificates shall be prepared by
the Regular Trustees on behalf of the Trust with respect to such Preferred
Securities; and
(d) upon surrender of the Global Certificate(s) by the Clearing
Agency, accompanied by registration instructions, the Regular Trustees
shall cause Definitive Preferred Security Certificates to be delivered to
Preferred Security Beneficial Owners in accordance with the instructions
of the Clearing Agency. Neither the Trustees nor the Trust shall be liable
for any delay in delivery of such instructions and each of them may
conclusively rely on and shall be protected in relying on, said
instructions of the Clearing Agency. The Definitive Preferred Security
Certificates shall be printed, lithographed or engraved or may be produced
in any other manner as is reasonably acceptable to the Regular Trustees,
as evidenced by their execution thereof, and may have such letters,
numbers or other marks of identification or designation and such legends
or endorsements as the Regular Trustees may deem appropriate, or as may be
required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on
which Preferred Securities may be listed, or to conform to usage.
SECTION 9.8. Mutilated, Destroyed, Lost or Stolen Certificates. If:
(a) any mutilated Certificates should be surrendered to the Regular
Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Regular Trustees such security
or indemnity as may be required by them to keep each of them harmless;
then, in the absence of notice that such Certificate shall have been acquired by
a bona fide purchaser, any Regular Trustee on behalf of the Trust shall execute
and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Certificate, a new Certificate of
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like denomination. In connection with the issuance of any new Certificate under
this Section 9.8, the Regular Trustees may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith. Any duplicate Certificate issued pursuant to this Section
shall constitute conclusive evidence of an ownership interest in the relevant
Securities, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
ARTICLE X.
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1. Liability. (a) Except as expressly set forth in this
Declaration, the Debentures, the Preferred Securities Guarantee, the Common
Securities Guarantee and the terms of the Securities, the Sponsor shall not be:
(i) personally liable for the return of any portion of the capital
contributions (or any return thereon) of the Holders of the Securities
which shall be made solely from assets of the Trust; or
(ii) required to pay to the Trust or to any Holder of Securities any
deficit upon dissolution of the Trust or otherwise.
(b) The Holder of the Common Securities shall be liable for all of
the debts and obligations of the Trust (other than with respect to the
Securities) to the extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the
Holders of the Preferred Securities shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
SECTION 10.2. Exculpation. (a) No Indemnified Person shall be
liable, responsible or accountable in damages or otherwise to the Trust or any
Covered Person for any loss, damage or claim incurred by reason of any act
performed or omission made by such Indemnified Person in good faith on behalf of
the Trust and in a manner such Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Indemnified Person by this
Declaration or by law, except that an Indemnified Person shall be liable for any
such loss, damage or claim incurred by reason of such Indemnified Person's
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gross negligence (or ordinary negligence in the case of the Institutional
Trustee) or willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust 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 Trust, 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 Holders of Securities might properly be paid.
SECTION 10.3. Fiduciary Duty. (a) To the extent that, at law or in
equity, an Indemnified Person has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to any other Covered Person, an
Indemnified Person acting under this Declaration shall not be liable to the
Trust or to any other Covered Person for its good faith reliance on the
provisions of this Declaration. The provisions of this Declaration, to the
extent that they restrict the duties and liabilities of an Indemnified Person
otherwise existing at law or in equity (other than the duties imposed on the
Institutional Trustee under the Trust Indenture Act), are agreed by the parties
hereto to replace such other duties and liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between
any Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein provides that an Indemnified Person shall act in
a manner that is, or provides terms that are, fair and reasonable to
the Trust or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise.
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(c) Whenever in this Declaration an Indemnified Person is permitted
or required to make a decision:
(i) in its "discretion" or under a grant of similar authority, the
Indemnified Person shall be entitled to consider 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 Trust 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 Declaration or
by applicable law.
SECTION 10.4. Indemnification. (a) (i) The Sponsor shall indemnify,
to the full extent permitted by law, any Company Indemnified 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 the Trust) by reason
of the fact that he is or was a Company Indemnified Person against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him 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 the Trust, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the Company
Indemnified Person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Trust, and, with
respect to any criminal action or proceeding, had reasonable cause to believe
that his conduct was unlawful.
(ii) The Sponsor shall indemnify, to the full extent permitted by
law, any Company Indemnified Person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit by or in the
right of the Trust to procure a judgment in its favor by reason of the fact that
he is or was a Company Indemnified Person against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Trust
and except that no such indemnification shall be made in respect of any claim,
issue or matter as to which such Company Indemnified Person shall have been
adjudged to be liable to the Trust unless and only to the extent that the Court
of Chancery of Delaware or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
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reasonably entitled to indemnity for such expenses which such Court of Chancery
or such other court shall deem proper.
(iii) To the extent that a Company Indemnified Person shall be
successful on the merits or otherwise (including dismissal of an action without
prejudice or the settlement of an action without admission of liability) in
defense of any action, suit or proceeding referred to in paragraphs (i) and (ii)
of this Section 10.4(a), or in defense of any claim, issue or matter therein, he
shall be indemnified, to the full extent permitted by law, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of this
Section 10.4(a) (unless ordered by a court) shall be made by the Sponsor only as
authorized in the specific case upon a determination that indemnification of the
Company Indemnified Person is proper in the circumstances because he has met the
applicable standard of conduct set forth in paragraphs (i) and (ii). Such
determination shall be made (1) by the Regular Trustees by a majority vote of a
quorum consisting of such Regular Trustees who were not parties to such action,
suit or proceeding, (2) if such a quorum is not obtainable, or, even if
obtainable, if a quorum of disinterested Regular Trustees so directs, by
independent legal counsel in a written opinion, or (3) by the Common Security
Holder of the Trust.
(v) Expenses (including attorneys' fees) incurred by a Company
Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in paragraphs (i) and (ii)
of this Section 10.4(a) shall be paid by the Sponsor in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of such Company Indemnified Person to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
Sponsor as authorized in this Section 10.4(a). Notwithstanding the foregoing, no
advance shall be made by the Sponsor if a determination is reasonably and
promptly made (i) by the Regular Trustees by a majority vote of a quorum of
disinterested Regular Trustees, (ii) if such a quorum is not obtainable, or,
even if obtainable, if a quorum of disinterested Regular Trustees so directs, by
independent legal counsel in a written opinion or (iii) the Common Security
Holder of the Trust, that, based upon the facts known to the Regular Trustees,
counsel or the Common Security Holder at the time such determination is made,
such Company Indemnified Person acted in bad faith or in a manner that such
person did not believe to be in or not opposed to the best interests of the
Trust, or, with respect to any criminal proceeding, that such Company
Indemnified Person believed or had reasonable cause to believe his conduct was
unlawful. In no event shall any advance be made in instances where the Regular
Trustees, independent legal counsel or Common Security Holder reasonably
determine that such person deliberately breached his duty to the Trust or its
Common or Preferred Security Holders.
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(vi) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other paragraphs of this Section 10.4(a) shall not be
deemed exclusive of any other rights to which those seeking indemnification and
advancement of expenses may be entitled under any agreement, vote of
stockholders or disinterested directors of the Sponsor or Preferred Security
Holders of the Trust or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office. All rights to
indemnification under this Section 10.4(a) shall be deemed to be provided by a
contract between the Sponsor and each Company Indemnified Person who serves in
such capacity at any time while this Section 10.4(a) is in effect. Any repeal or
modification of this Section 10.4(a) shall not affect any rights or obligations
then existing.
(vii) The Sponsor or the Trust may purchase and maintain insurance
on behalf of any person who is or was a Company Indemnified Person against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Sponsor would have the
power to indemnify him against such liability under the provisions of this
Section 10.4(a).
(viii) For purposes of this Section 10.4(a), references to "the
Trust" shall include, in addition to the resulting or surviving entity, any
constituent entity (including any constituent of a constituent) absorbed in a
consolidation or merger, so that any person who is or was a director, trustee,
officer or employee of such constituent entity, or is or was serving at the
request of such constituent entity as a director, trustee, officer, employee or
agent of another entity, shall stand in the same position under the provisions
of this Section 10.4(a) with respect to the resulting or surviving entity as he
would have with respect to such constituent entity if its separate existence had
continued.
(ix) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section 10.4(a) shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a Company
Indemnified Person and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(b) The Sponsor agrees to indemnify (i) the Institutional Trustee,
(ii) the Delaware Trustee, (iii) any Affiliate of the Institutional Trustee and
the Delaware Trustee, and (iv) any officers, directors, shareholders, members,
partners, employees, representatives, custodians, nominees or agents of the
Institutional Trustee and the Delaware Trustee (each of the Persons in (i)
through (iv) being referred to as a "Fiduciary Indemnified Person") for, and to
hold each Fiduciary Indemnified Person harmless against, any loss, liability or
expense incurred without gross negligence (or, in the case of the Institutional
Trustee, pursuant to Section 3.9, negligence) or bad faith on its part, arising
out of or in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses
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(including reasonable legal fees and expenses) of defending itself against or
investigating any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in this Section 10.4(b) shall survive the satisfaction
and discharge of this Declaration.
SECTION 10.5. Outside Businesses. Any Covered Person, the Sponsor,
the Delaware Trustee and the Institutional Trustee may engage in or possess an
interest in other business ventures of any nature or description, independently
or with others, similar or dissimilar to the business of the Trust, and the
Trust and the Holders of Securities shall have no rights by virtue of this
Declaration in and to such independent ventures or the income or profits derived
therefrom, and the pursuit of any such venture, even if competitive with the
business of the Trust, shall not be deemed wrongful or improper. No Covered
Persons, the Sponsor, the Delaware Trustee, or the Institutional Trustee shall
be obligated to present any particular investment or other opportunity to the
Trust even if such opportunity is of a character that, if presented to the
Trust, could be taken by the Trust, and any Covered Person, the Sponsor, the
Delaware Trustee and the Institutional Trustee shall have the right to take for
its own account (individually or as a partner or fiduciary) or to recommend to
others any such particular investment or other opportunity. Any Covered Person,
the Delaware Trustee and the Institutional Trustee may engage or be interested
in any financial or other transaction with the Sponsor or any Affiliate of the
Sponsor, or may act as depositary for, trustee or agent for, or act on any
committee or body of holders of, securities or other obligations of the Sponsor
or its Affiliates.
ARTICLE XI.
ACCOUNTING
SECTION 11.1. Fiscal Year. The fiscal year ("Fiscal Year") of the
Trust shall be the calendar year, or such other year as is required by the Code.
SECTION 11.2. Certain Accounting Matters. (a) At all times during
the existence of the Trust, the Regular Trustees shall keep, or cause to be
kept, full books of account, records and supporting documents, which shall
reflect in reasonable detail, each transaction of the Trust. The books of
account shall be maintained on the accrual method of accounting, in accordance
with generally accepted accounting principles, consistently applied. The Trust
shall use the accrual method of accounting for United States federal income tax
purposes. The books of account and the records of the Trust shall be examined by
and reported upon as of the end of each Fiscal Year of the Trust by a firm of
independent certified public accountants selected by the Regular Trustees.
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(b) The Regular Trustees shall cause to be duly prepared and
delivered to each of the Holders of Securities, any annual United States federal
income tax information statement, required by the Code, containing such
information with regard to the Securities held by each Holder as is required by
the Code and the Treasury Regulations. The Regular Trustees shall endeavor to
deliver all such statements within 30 days after the end of each Fiscal Year of
the Trust.
(c) The Regular Trustees shall cause to be duly prepared and filed
with the appropriate taxing authority, an annual United States federal income
tax return, on a Form 1041 or such other form required by United States federal
income tax law, and any other annual income tax returns required to be filed by
the Regular Trustees on behalf of the Trust with any state or local taxing
authority.
SECTION 11.3. Banking. The Trust shall maintain one or more bank
accounts in the name and for the sole benefit of the Trust; provided, however,
that all payments of funds in respect of the Debentures held by the
Institutional Trustee shall be made directly to the Institutional Trustee
Account and no other funds of the Trust shall be deposited in the Institutional
Trustee Account. The sole signatories for such accounts shall be designated by
the Regular Trustees; provided, however, that the Institutional Trustee shall
designate the signatories for the Institutional Trustee Account.
SECTION 11.4. Withholding. The Trust and the Regular Trustees shall
comply with all withholding requirements under United States federal, state and
local law. The Trust shall request, and the Holders shall provide to the Trust,
such forms or certificates as are necessary to establish an exemption from
withholding with respect to each Holder or beneficial owner, and any
representations and forms as shall reasonably be requested by the Trust to
assist it in determining the extent of, and in fulfilling, its withholding
obligations. The Regular Trustees shall file required forms with applicable
jurisdictions and, unless an exemption from withholding is properly established
by a Holder or beneficial owner, shall remit amounts withheld with respect to
the Holder or beneficial owner to applicable jurisdictions. To the extent that
the Trust is required to withhold and pay over any amounts to any authority with
respect to distributions or allocations to any Holder or beneficial owner, the
amount withheld shall be deemed to be a distribution in the amount of the
withholding to the Holder or beneficial owner. In the event of any claimed over
withholding, Holders shall be limited to an action against the applicable
jurisdiction. If the amount required to be withheld was not withheld from actual
Distributions made, the Trust may reduce subsequent Distributions by the amount
of such withholding.
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ARTICLE XII.
AMENDMENTS AND MEETINGS
SECTION 12.1. Amendments. (a) Except as otherwise provided in this
Declaration or by any applicable terms of the Securities, this Declaration may
only be amended by a written instrument approved and executed by:
(i) the Sponsor and the Regular Trustees (or, if there are more than
two Regular Trustees, a majority of the Regular Trustees);
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Institutional Trustee, the Institutional
Trustee; and
(iii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, the Delaware Trustee;
(b) no amendment shall be made, and any such purported amendment
shall be void and ineffective:
(i) unless, in the case of any proposed amendment, the Institutional
Trustee shall have first received an Officers' Certificate from each of
the Trust and the Sponsor that such amendment is permitted by, and
conforms to, the terms of this Declaration (including the terms of the
Securities);
(ii) unless, in the case of any proposed amendment which affects the
rights, powers, duties, obligations or immunities of the Institutional
Trustee, the Institutional Trustee shall have also first received an
opinion of counsel (who may be counsel to the Sponsor or the Trust) that
such amendment is permitted by, and conforms to, the terms of this
Declaration (including the terms of the Securities); and
(iii) to the extent the result of such amendment would be to:
(A) cause the trust to fail to continue to be classified for
purposes of United States federal income taxation as a grantor
trust;
(B) reduce or otherwise adversely affect the powers of the
Institutional Trustee in contravention of the Trust Indenture Act;
or
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(C) cause the Trust to be deemed to be an Investment Company
required to be registered under the Investment Company Act;
(c) at such time after the Trust has issued any Securities that
remain outstanding, any amendment that would adversely affect the rights,
privileges or preferences of any Holder of Securities may be effected only with
such additional requirements as may be set forth in the terms of such
Securities;
(d) Section 10.1(c) and this Section 12.1 shall not be amended
without the consent of all of the Holders of the Securities;
(e) Article IV shall not be amended without the consent of the
Holders of a Majority in liquidation amount of the Common Securities;
(f) the rights of the holders of the Common Securities under Article
V to increase or decrease the number of, and appoint and remove, Trustees shall
not be amended without the consent of the Holders of a Majority in liquidation
amount of the Common Securities; and
(g) notwithstanding Section 12.1(c), this Declaration may be amended
without the consent of the Holders of the Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this Declaration that
may be defective or inconsistent with any other provision of this
Declaration;
(iii) add to the covenants, restrictions or obligations of the
Sponsor;
(iv) conform to any change in Rule 3a-5 or written change in
interpretation or application of Rule 3a-5 by any legislative body, court,
government agency or regulatory authority, which change does not have a
material adverse effect on the right, preferences or privileges of the
Holders; and
(v) modify, eliminate and add to any provision of this Declaration
to such extent as may be necessary, provided such modification,
elimination or addition would not adversely affect the rights, privileges
or preference of any Holder of the Securities.
SECTION 12.2. Meetings of the Holders of Securities; Action by
Written Consent. (a) Meetings of the Holders of any class of Securities may be
called at any time by
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the Regular Trustees (or as provided in the terms of the Securities) to consider
and act on any matter on which Holders of such class of Securities are entitled
to act under the terms of this Declaration, the terms of the Securities or the
rules of any stock exchange on which the Preferred Securities are listed or
admitted for trading. The Regular Trustees shall call a meeting of the Holders
of such class if directed to do so by the Holders of at least 10% in liquidation
amount of such class of Securities. Such direction shall be given by delivering
to the Regular Trustees one or more calls in a writing stating that the signing
Holders of Securities wish to call a meeting and indicating the general or
specific purpose for which the meeting is to be called. Any Holders of
Securities calling a meeting shall specify in writing the Security Certificates
held by the Holders of Securities exercising the right to call a meeting and
only those Securities evidenced by Securities Certificates so specified shall be
counted for purposes of determining whether the required percentage set forth in
the second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to all the Holders of
Securities having a right to vote thereat at least 7 days and not more
than 60 days before the date of such meeting. Whenever a vote, consent or
approval of the Holders of Securities is permitted or required under this
Declaration or the rules of any stock exchange on which the Preferred
Securities are listed or admitted for trading, such vote, consent or
approval may be given at a meeting of the Holders of Securities. Any
action that may be taken at a meeting of the Holders of Securities may be
taken without a meeting if a consent in writing setting forth the action
so taken is signed by the Holders of Securities owning not less than the
minimum amount of Securities in liquidation amount that would be necessary
to authorize or take such action at a meeting at which all Holders of
Securities having a right to vote thereon were present and voting. Prompt
notice of the taking of action without a meeting shall be given to the
Holders of Securities entitled to vote who have not consented in writing.
The Regular Trustees may specify that any written ballot submitted to the
Security Holder for the purpose of taking any action without a meeting
shall be returned to the Trust within the time specified by the Regular
Trustees;
(ii) each Holder of a Security may authorize any Person to act for
it by proxy on all matters in which a Holder of Securities is entitled to
participate, including waiving notice of any meeting, or voting or
participating at a meeting. No proxy shall be valid after the expiration
of 11 months from the date thereof unless otherwise provided in the proxy.
Every proxy shall be revocable at the pleasure of the Holder of Securities
executing it. Except as otherwise provided herein, all matters relating to
the
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giving, voting or validity of proxies shall be governed by the General
Corporation Law of the State of Delaware relating to proxies, and judicial
interpretations thereunder, as if the Trust were a Delaware corporation
and the Holders of the Securities were stockholders of a Delaware
corporation;
(iii) each meeting of the Holders of the Securities shall be
conducted by the Regular Trustees or by such other Person that the Regular
Trustees may designate; and
(iv) unless the Business Trust Act, this Declaration, the terms of
the Securities, the Trust Indenture Act or the listing rules of any stock
exchange on which the Preferred Securities are then listed or trading,
otherwise provides, the Regular Trustees, in their sole discretion, shall
establish all other provisions relating to meetings of Holders of
Securities, including notice of the time, place or purpose of any meeting
at which any matter is to be voted on by any Holders of Securities, 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.
ARTICLE XIII.
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1. Representations and Warranties of Institutional
Trustee. The Trustee that acts as initial Institutional Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Institutional Trustee represents and warrants to the Trust and
the Sponsor at the time of the Successor Institutional Trustee's acceptance of
its appointment as Institutional Trustee that:
(a)(i) in the case of the initial Institutional Trustee, it is a
Delaware banking corporation with trust powers, duly organized, validly
existing and in good standing under the laws of the State of Delaware,
with trust power and authority to execute and deliver, and to carry out
and perform its obligations under the terms of, the Declaration and (ii)
in the case of any Successor Institutional Trustee, it satisfies the
requirements of Section 5.3(a) herein;
(b) the execution, delivery and performance by the Institutional
Trustee of the Declaration has been duly authorized by all necessary
corporate action on the part of the Institutional Trustee. The Declaration
has been duly executed and delivered by the
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Institutional Trustee, and it constitutes a legal, valid and binding
obligation of the Institutional Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws affecting
creditors' rights generally and to general principles of equity and the
discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law);
(c) the execution, delivery and performance of the Declaration by
the Institutional Trustee does not conflict with or constitute a breach of
the Articles of Organization or By-laws of the Institutional Trustee; and
(d) no consent, approval or authorization of, or registration with
or notice to, any State or Federal banking authority is required for the
execution, delivery or performance by the Institutional Trustee, of the
Declaration.
SECTION 13.2. Representations and Warranties of Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents and warrants to the
Trust and to the Sponsor at the date of this Declaration, and each Successor
Delaware Trustee represents and warrants to the Trust and the Sponsor at the
time of the Successor Delaware Trustee's acceptance of its appointment as
Delaware Trustee that:
(a)(i) in the case of the initial Delaware Trustee, it is a Delaware
banking corporation with trust powers, duly organized, validly existing
and in good standing under the laws of the State of Delaware, with trust
power and authority to execute and deliver, and to carry out and perform
its obligations under the terms of, the Declaration and (ii) in the case
of any Successor Delaware Trustee, it satisfies the requirements of
Section 5.2 herein;
(b) the Delaware Trustee has been authorized to perform its
obligations under the Certificate of Trust and the Declaration. The
Declaration under Delaware law constitutes a legal, valid and binding
obligation of the Delaware Trustee, enforceable against it in accordance
with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the
court (regardless of whether the enforcement of such remedies is
considered in a proceeding in equity or at law);
(c) no consent, approval or authorization of, or registration with
or notice to, any State or Federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee, of the
Declaration; and
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(d) the Delaware Trustee is a natural person who is a resident of
the State of Delaware or, if not a natural person, an entity which has its
principal place of business in the State of Delaware.
ARTICLE XIV.
MISCELLANEOUS
SECTION 14.1. Notices. All notices provided for in this Declaration
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by registered or certified mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at the
Trust's mailing address set forth below (or such other address as the
Trust may give notice of to the Holders of the Securities):
PLC Capital Trust III
c/o Protective Life Corporation
2801 Highway 280 South
Birmingham, Alabama 35223
(b) if given to the Delaware Trustee, at the mailing address set
forth below (or such other address as Delaware Trustee may give notice of
to the Holders of the Securities):
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
(c) if given to the Institutional Trustee, at its Corporate Trust
Office to the attention of Corporate Trust Administration (or such other
address as the Institutional Trustee may give notice of to the Holders of
the Securities):
(d) if given to the Holder of the Common Securities, at the mailing
address of the Sponsor set forth below (or such other address as the
Holder of the Common Securities may give notice to the Trust):
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Protective Life Corporation
2801 Highway 280 South
Birmingham, Alabama 35223
(e) if given to any other Holder, at the address set forth on the
books and records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 14.2. Governing Law. This Declaration and the rights of the
parties hereunder shall be governed by and interpreted in accordance with the
laws of the State of Delaware and all rights and remedies shall be governed by
such laws without regard to principles of conflict of laws.
SECTION 14.3. Intention of the Parties. It is the intention of the
parties hereto that the Trust be classified for United States federal income tax
purposes as a grantor trust. The provisions of this Declaration shall be
interpreted to further this intention of the parties.
SECTION 14.4. Headings. Headings contained in this Declaration are
inserted for convenience of reference only and do not affect the interpretation
of this Declaration or any provision hereof.
SECTION 14.5. Successors and Assigns. Whenever in this Declaration
any of the parties hereto is named or referred to, the successors and assigns of
such party shall be deemed to be included, and all covenants and agreements in
this Declaration by the Sponsor and the Trustees shall bind and inure to the
benefit of their respective successors and assigns, whether or not so expressed.
SECTION 14.6. Partial Enforceability. If any provision of this
Declaration, or the application of such provision to any Person or circumstance,
shall be held invalid, the remainder of this Declaration, or the application of
such provision to persons or circumstances other than those to which it is held
invalid, shall not be affected thereby.
SECTION 14.7. Counterparts. This Declaration may contain more than
one counterpart of the signature page and this Declaration may be executed by
the affixing of the
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signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
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IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
---------------------------------
Richard J. Bielen
Trustee
---------------------------------
Jerry W. DeFoor
Trustee
WILMINGTON TRUST COMPANY
Trustee
By:
-----------------------------
Name:
Title:
PROTECTIVE LIFE CORPORATION
as Sponsor
By:
-----------------------------
Name:
Title:
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ANNEX I
TERMS OF
___% TRUST ORIGINATED PREFERRED SECURITIES
___% TRUST ORIGINATED COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration of
Trust, dated as of __________, 199_ (as amended from time to time, the
"Declaration"), the designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Preferred Securities and the Common
Securities are set out below (each capitalized term used but not defined herein
has the meaning set forth in the Declaration or, if not defined in such
Declaration, as defined in the Prospectus referred to below):
1. Designation and Number. (a) Preferred Securities. _________ Preferred
Securities of the Trust with an aggregate liquidation amount with respect to the
assets of the Trust of ____________________ dollars ($__________) and a
liquidation amount with respect to the assets of the Trust of $25 per preferred
security, are hereby designated for the purposes of identification only as "___%
Trust Originated Preferred Securities(SM) ('TOPrS'(SM))" (the "Preferred
Securities"). The Preferred Security Certificates evidencing the Preferred
Securities shall be substantially in the form of Exhibit A-1 to the Declaration,
with such changes and additions thereto or deletions therefrom as may be
required by ordinary usage, custom or practice or to conform to the rules of any
stock exchange on which the Preferred Securities are listed.
(b) Common Securities. ______ Common Securities of the Trust with an
aggregate liquidation amount with respect to the assets of the Trust of
_______________ _________________________________ dollars ($_________) and a
liquidation amount with respect to the assets of the Trust of $25 per common
security, are hereby designated for the purposes of identification only as "___%
Trust Originated Common Securities" (the "Common Securities"). The Common
Security Certificates evidencing the Common Securities shall be substantially in
the form of Exhibit A-2 to the Declaration, with such changes and additions
thereto or deletions therefrom as may be required by ordinary usage, custom or
practice.
2. Distributions. (a) Distributions payable on each Security will be
fixed at a rate per annum of ___% (the "Coupon Rate") of the stated liquidation
amount of $25 per Security, such rate being the rate of interest payable on the
Debentures to be held by the Institutional Trustee. Distributions in arrears for
more than three consecutive months will bear interest thereon compounded
quarterly at the Coupon Rate (to the extent permitted by applicable law). The
term "Distributions" as used herein includes such cash distributions and
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any such interest payable unless otherwise stated. A Distribution is payable
only to the extent that payments are made in respect of the Debentures held by
the Institutional Trustee and to the extent the Institutional Trustee has funds
available therefor. The amount of Distributions payable for any period will be
computed for any full quarterly Distribution period on the basis of a 360-day
year of twelve 30-day months, and for any period shorter than a full quarterly
Distribution period for which Distributions are computed, Distributions will be
computed on the basis of the actual number of days elapsed per 90-day quarter.
(b) Distributions on the Securities will be cumulative, will
accrue from __________, 199_, and will be payable quarterly in arrears, on
March 31, June 30, September 30, and December 31 of each year, commencing on
__________, 199_, except as otherwise described below. The Debenture Issuer
has the right under the Indenture to defer payments of interest by extending
the interest payment period from time to time on the Debentures for a period
not exceeding 20 consecutive quarters (each such period, an "Extension
Period"), during which Extension Period no interest shall be due and payable
on the Debentures, provided that no Extension Period shall last beyond the
date of maturity of the Debentures. As a consequence of any such deferral,
Distributions will also be deferred. Despite any such deferral, quarterly
Distributions will continue to accrue with interest thereon (to the extent
permitted by applicable law) at the Coupon Rate compounded quarterly during
any such Extension Period. Prior to the termination of any such Extension
Period, the Debenture Issuer may further extend such Extension Period;
provided that such Extension Period together with all such previous and
further extensions thereof may not exceed 20 consecutive quarters. Upon the
termination of any Extension Period, payments of accrued Distributions will
be payable to Holders as they appeared on the books and records of the Trust
on the record date immediately preceding the end of the applicable Extension
Period. Upon the termination of any Extension Period and the payment of all
amounts then due, the Debenture Issuer may commence a new Extension Period,
subject to the above requirements.
(c) Distributions on the Securities will be payable to the Holders
thereof as they appear on the books and records of the Trust on the relevant
record dates. While the Preferred Securities remain in book-entry only form, the
relevant record dates shall be one Business Day prior to the relevant payment
dates, which payment dates shall correspond to the interest payment dates on the
Debentures. Subject to any applicable laws and regulations and the provisions of
the Declaration, each such payment in respect of the Preferred Securities will
be made as described under the heading "Description of the Preferred Securities
- -- Book-Entry Only Issuance -- The Depository Trust Company" in the Prospectus
Supplement dated __________, 199_, of the Trust included in the Registration
Statement on Form S-3 of the Sponsor and the Trust. The relevant record dates
for the Common Securities shall be the same record dates as for the Preferred
Securities. If the Preferred Securities shall cease to be in book-entry only
form, the relevant record dates for the Preferred Securities shall conform to
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the rules of any securities exchange on which the securities are listed and, if
none, shall be the March 15, June 15, September 15, December 15, as the case may
be, before the relevant payment dates, which payment dates correspond to the
interest payment dates on the Debentures. Distributions payable on any
Securities that are not punctually paid on any Distribution payment date, as a
result of the Debenture Issuer having failed to make a payment under the
Debentures, will cease to be payable to the Person in whose name such Securities
are registered on the relevant record date, and such defaulted Distribution will
instead be payable to the Person in whose name such Securities are registered on
the special record date or other specified date determined in accordance with
the Indenture. If any date on which Distributions are payable on the Securities
is not a Business Day, then payment of the Distribution payable on such date
will be made on the next succeeding day that 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.
(d) In the event that there is any money or other property held by
or for the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata (as defined herein) among the Holders of the Securities.
3. Liquidation Distribution upon Dissolution. In the event of any
voluntary or involuntary dissolution, winding-up or termination of the Trust,
the Holders of the Securities on the date of such dissolution, winding-up or
termination, as the case may be, will be entitled to receive out of the assets
of the Trust available for distribution to Holders of Securities after
satisfaction of liabilities of creditors of the Trust an amount equal to the
aggregate of the stated liquidation amount of $25 per Security plus accrued and
unpaid Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution"), unless, in connection with such dissolution,
winding-up or termination, Debentures in an aggregate principal amount equal to
the aggregate stated liquidation amount of such Securities, with an interest
rate equal to the Coupon Rate of, and bearing accrued and unpaid interest in an
amount equal to the accrued and unpaid Distributions on, such Securities, shall
be distributed on a Pro Rata basis to the Holders of the Securities in exchange
for such Securities.
If, upon any such dissolution, the Liquidation Distribution can be
paid only in part because the Trust has insufficient assets available to pay in
full the aggregate Liquidation Distribution, then the amounts payable directly
by the Trust on the Securities shall be paid on a Pro Rata basis.
4. Redemption and Distribution. The Securities are subject to
redemption in accordance herewith at any time after __________, 20__ and, in
certain circumstances, following the occurrence of a Tax Event (as defined
below).
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(a) Upon the repayment of the Debentures in whole or in part,
whether at maturity or upon redemption (either at the option of the Debenture
Issuer or pursuant to a Tax Event in each case as described below), the proceeds
from such repayment or payment shall be simultaneously applied to redeem
Securities having an aggregate liquidation amount equal to the aggregate
principal amount of the Debentures so repaid or redeemed at a redemption price
of $25 per Security plus an amount equal to accrued and unpaid Distributions
thereon at the date of the redemption, payable in cash (the "Redemption Price").
Holders will be given not less than 30 nor more than 60 days' notice of any such
redemption.
(b) If fewer than all the outstanding Securities are to be so
redeemed, the Common Securities and the Preferred Securities will be redeemed
Pro Rata and the Preferred Securities to be redeemed will be redeemed as
described in Section 4(f)(ii) below.
(c) The Sponsor shall have the right at any time, upon notice to the
Regular Trustees, to elect to terminate the Trust, and upon receipt of such
notice, the Regular Trustees shall dissolve the Trust and, after satisfaction of
creditors of the Trust, cause Debentures held by the Institutional Trustee,
having an aggregate principal amount equal to the aggregate stated liquidation
amount of, with an interest rate identical to the Coupon Rate of, and accrued
and unpaid interest equal to accrued and unpaid Distributions on, and having the
same record date for payment as, the Securities, to be distributed to the
Holders of the Securities in liquidation of such Holders' interests in the
Securities within 90 days following receipt of the Sponsor's notice of election.
(d) If a Tax Event shall occur and be continuing, the Debenture
Issuer shall have the right at any time, upon not less than 30 nor more than 60
days' notice, to redeem the Debentures in whole or in part for cash within 90
days following the occurrence of such Tax Event, and, following such redemption,
Securities with an aggregate liquidation amount equal to the aggregate principal
amount of the Debentures so redeemed shall be redeemed by the Trust at the
Redemption Price on a Pro Rata basis; provided, however, that, if at the time
there is available to the Debenture Issuer or the Trust the opportunity to
eliminate, within such 90 day period, the Tax Event by taking some Ministerial
Action, the Trust or the Debenture Issuer will pursue such Ministerial Action in
lieu of redemption.
"Tax Event" means the receipt by the Debenture Issuer of an opinion
of nationally recognized independent tax counsel experienced in such matters to
the effect that, as a result of (i) any amendment to, or change (including any
announced prospective change) in, on or after the day before the date of
issuance of the Preferred Securities under the Declaration, the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein or (ii) any interpretation or application
of, or
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pronouncement with respect to, such laws or regulations by any legislative
body, court, governmental agency or regulatory authority, which amendment or
change is effective or which interpretation, application or pronouncement is
announced on or after the day before the date of issuance of the Preferred
Securities under the Declaration, there is more than an insubstantial
increase in the risk (x) that the Trust is, or will be within 90 days of the
date thereof, subject to United States federal income tax with respect to
income received or accrued on the Debentures and that the Trust would be
subject to United States federal income tax if the Debentures were
distributed to the holders of the Securities in liquidation of such holders'
interests in the Trust pursuant to the exercise by the Debenture Issuer of
its right to dissolve the Trust, (y) that interest payable by the Debenture
Issuer on the Debentures is not, or within 90 days of the date thereof, will
not be, deductible, in whole or in part, for United States federal income tax
purposes, even if the Debentures were distributed to the holders of the
Securities in liquidation of such holders' interests in the Trust pursuant to
the exercise by the Debenture Issuer of its right to dissolve the Trust or
(z) that the Trust is, or will be within 90 days of the date thereof, subject
to more than a de minimis amount of other taxes, duties or other governmental
charges and that the Trust would be subject to more than a de minimis amount
of taxes, duties or other governmental charges if the Debentures were
distributed to the holders of the Securities in liquidation of such holders'
interests in the Trust pursuant to the exercise by the Debenture Issuer of
its right to dissolve the Trust.
"Ministerial Action" means the filing of a form, making an election,
or pursuing some other similar reasonable measure that has no adverse effect on
the Trust, the Debenture Issuer, the Sponsor or the Holders.
After the date for any distribution of Debentures upon dissolution
of the Trust: (i) the Securities will no longer be deemed to be outstanding,
(ii) The Depository Trust Company (the "Depository") or its nominee (or any
successor Clearing Agency or its nominee), as the record Holder of the Preferred
Securities, will receive a registered global certificate or certificates
representing the Debentures to be delivered upon such distribution and (iii) any
certificates representing Securities, except for certificates representing
Preferred Securities held by the Depository or its nominee (or any successor
Clearing Agency or its nominee), will be deemed to represent beneficial
interests in the Debentures having an aggregate principal amount equal to the
aggregate stated liquidation amount of, with an interest rate identical to the
distribution rate of, and accrued and unpaid interest equal to accrued and
unpaid Distributions on such Securities until such certificates are presented to
the Debenture Issuer or its agent for transfer or reissue.
(d) The Trust may not redeem fewer than all the outstanding
Securities unless all accrued and unpaid Distributions have been paid on all
Securities for all quarterly Distribution periods terminating on or before the
date of redemption.
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(e) If the Debentures are distributed to holders of the Securities,
pursuant to the terms of the Indenture, the Debenture Issuer will use its best
efforts to have the Debentures listed on the New York Stock Exchange or on such
other exchange as the Preferred Securities were listed immediately prior to the
distribution of the Debentures.
(f) "Redemption or Distribution Procedures."
(i) Notice of any redemption of, or notice of distribution of
Debentures in exchange for, the Securities (a "Redemption/Distribution Notice")
will be given by the Trust by mail to each Holder of Securities to be redeemed
or exchanged not fewer than 30 nor more than 60 days before the date fixed for
redemption or exchange thereof which, in the case of a redemption, will be the
date fixed for redemption of the Debentures. For purposes of the calculation of
the date of redemption or exchange and the dates on which notices are given
pursuant to this Section 4(f)(i), a Redemption/Distribution Notice shall be
deemed to be given on the day such notice is first mailed by first-class mail,
postage prepaid, to Holders of Securities. Each Redemption/Distribution Notice
shall be addressed to the Holders of Securities at the address of each such
Holder appearing in the books and records of the Trust. No defect in the
Redemption/Distribution Notice or in the mailing of either thereof with respect
to any Holder shall affect the validity of the redemption or exchange
proceedings with respect to any other Holder.
(ii) In the event that fewer than all the outstanding Securities are
to be redeemed, the Securities to be redeemed shall be redeemed Pro Rata from
each Holder of Securities, it being understood that, in respect of Preferred
Securities registered in the name of and held of record by the Depository or its
nominee (or any successor Clearing Agency or its nominee), the distribution of
the proceeds of such redemption will be made to each Clearing Agency Participant
(or Person on whose behalf such nominee holds such securities) in accordance
with the procedures applied by such agency or nominee.
(iii) If Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice, which notice may only be issued if the
Debentures are redeemed as set out in this Section 4 (which notice will be
irrevocable), then (A) while the Preferred Securities are in book-entry only
form, with respect to the Preferred Securities, by 12:00 noon, New York City
time, on the redemption date, provided that the Debenture Issuer has paid the
Institutional Trustee a sufficient amount of cash in connection with the related
redemption or maturity of the Debentures, the Institutional Trustee will deposit
irrevocably with the Depository or its nominee (or successor Clearing Agency or
its nominee) funds sufficient to pay the applicable Redemption Price with
respect to the Preferred Securities and will give the Depository irrevocable
instructions and authority to pay the Redemption Price to the Holders of the
Preferred Securities, and (B) with respect to Preferred Securities issued in
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definitive form and Common Securities, provided that the Debenture Issuer has
paid the Institutional Trustee a sufficient amount of cash in connection with
the related redemption or maturity of the Debentures, the Institutional Trustee
will pay the relevant Redemption Price to the Holders of such Securities by
check mailed to the address of the relevant Holder appearing on the books and
records of the Trust on the redemption date. If a Redemption/Distribution Notice
shall have been given and funds deposited as required, if applicable, then
immediately prior to the close of business on the date of such deposit, or on
the redemption date, as applicable, distributions will cease to accrue and all
rights of Holders of such Securities so called for redemption will cease, except
the right of the Holders of such Securities to receive the Redemption Price, but
without interest on such Redemption Price. Neither the Regular Trustees nor the
Trust shall be required to register or cause to be registered the transfer of
any Securities that have been so called for redemption. If any date fixed for
redemption of Securities is not a Business Day, then payment of the Redemption
Price payable on such date will be made on the next succeeding day that is a
Business Day (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 each case
with the same force and effect as if made on such date fixed for redemption. If
payment of the Redemption Price in respect of any Securities is improperly
withheld or refused and not paid either by the Institutional Trustee or by the
Sponsor as guarantor pursuant to the relevant Securities Guarantee,
Distributions on such Securities will continue to accrue from the original
redemption date to the actual 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.
(iv) Redemption/Distribution Notices shall be sent by the Regular
Trustees on behalf of the Trust to (A) in respect of the Preferred Securities,
the Depository or its nominee (or any successor Clearing Agency or its nominee)
if Global Certificates have been issued or, if Definitive Preferred Security
Certificates have been issued, to the Holder thereof, and (B) in respect of the
Common Securities to the Holder thereof.
(v) Subject to the foregoing and applicable law (including, without
limitation, United States federal securities laws), provided the acquiror is not
the Holder of the Common Securities or the obligor under the Indenture, the
Sponsor or any of its subsidiaries may at any time and from time to time
purchase outstanding Preferred Securities by tender, in the open market or by
private agreement.
5. Voting Rights - Preferred Securities. (a) Except as provided under
Sections 5(b) and 7 of this Annex I and as otherwise required by law and the
Declaration, the Holders of the Preferred Securities will have no voting rights.
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(b) Subject to the requirements set forth in this paragraph, the
Holders of a Majority in liquidation amount of the Preferred Securities, voting
separately as a class may direct the time, method, and place of conducting any
proceeding for any remedy available to the Institutional Trustee, or exercising
any trust or power conferred upon the Institutional Trustee under the
Declaration, including (i) directing the time, method, place of conducting any
proceeding for any remedy available to the Debenture Trustee, or exercising any
trust or power conferred on the Debenture Trustee with respect to the
Debentures, (ii) waive any past default and its consequences that is waivable
under Section 5.7 of the Indenture, or (iii) exercise any right to rescind or
annul a declaration that the principal of all the Debentures shall be due and
payable, provided, however, that, where a consent or action under the Indenture
would require the consent or act of the Holders of greater than a majority of
the Holders in principal amount of Debentures affected thereby (a "Super
Majority"), the Institutional Trustee may only give such consent or take such
action at the written direction of the Holders of at least the proportion in
liquidation amount of the Preferred Securities which the relevant Super Majority
represents of the aggregate principal amount of the Debentures outstanding. The
Institutional Trustee shall not revoke any action previously authorized or
approved by a vote of the Holders of the Preferred Securities. Other than with
respect to directing the time, method and place of conducting any remedy
available to the Institutional Trustee or the Debenture Trustee as set forth
above, the Institutional Trustee shall not take any action in accordance with
the directions of the Holders of the Preferred Securities under this paragraph
unless the Institutional Trustee has obtained an opinion of tax counsel to the
effect that for the purposes of United States federal income tax the Trust will
not be classified as other than a grantor trust on account of such action. If a
Declaration Event of Default has occurred and is continuing and such event is
attributable to the failure of the Debenture Issuer to pay interest or principal
on the Debentures on the date such interest or principal is otherwise payable
(or in the case of redemption, on the redemption date), then a Holder of
Preferred Securities may directly institute a proceeding for enforcement of
payment to such Holder of the principal of or interest on the Debentures having
a principal amount equal to the aggregate liquidation amount of the Preferred
Securities of such Holder on or after the respective due date specified in the
Debentures. Notwithstanding any payments made to such Holder by the Debenture
Issuer in connection with such proceeding, the Debenture Issuer shall remain
obligated to pay the principal of or interest on the Debentures held by the
Trust or the Institutional Trustee, and the Debenture Issuer shall be subrogated
to the rights of the Holders of Preferred Securities with respect to payments on
the Preferred Securities to the extent of any payments made by the Debenture
Issuer to such Holder in any such proceeding. Except as provided in the second
preceding sentence, the Holders of Preferred Securities will not be able to
exercise directly any other remedy available to the holders of the Debentures.
Any approval or direction of Holders of Preferred Securities may be
given at a separate meeting of Holders of Preferred Securities convened for such
purpose, at a meeting of
I-8
<PAGE>
all of the Holders of Securities in the Trust or pursuant to written consent.
The Regular Trustees will cause a notice of any meeting at which Holders of
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 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
consents.
No vote or consent of the Holders of the Preferred Securities will
be required for the Trust to redeem and cancel Preferred Securities or to
distribute the Debentures in accordance with the Declaration and the terms of
the Securities.
Notwithstanding that Holders of Preferred Securities are entitled to
vote or consent under any of the circumstances described above, any of the
Preferred Securities that are owned by the Sponsor or any Affiliate of the
Sponsor shall not be entitled to vote or consent and shall, for purposes of such
vote or consent, be treated as if they were not outstanding.
6. Voting Rights - Common Securities. (a) Except as provided under
Sections 6(b) and (c) of this Annex I and as otherwise required by law and the
Declaration, the Holders of the Common Securities will have no voting rights.
(b) The Holders of the Common Securities are entitled, in accordance
with Article V of the Declaration, to vote to appoint, remove or replace any
Trustee or to increase or decrease the number of Trustees.
(c) Subject to Section 2.6 of the Declaration and only after the
Event of Default with respect to the Preferred Securities has been cured,
waived, or otherwise eliminated and subject to the requirements of the second to
last sentence of this paragraph, the Holders of a Majority in liquidation amount
of the Common Securities, voting separately as a class, may direct the time,
method, and place of conducting any proceeding for any remedy available to the
Institutional Trustee, or exercising any trust or power conferred upon the
Institutional Trustee under the Declaration, including (i) directing the time,
method, place of conducting any proceeding for any remedy available to the
Debenture Trustee, or exercising any trust or power conferred on the Debenture
Trustee with respect to the Debentures, (ii) waive any past default and its
consequences that is waivable under Section 5.7 of the Indenture, or (iii)
exercise any right to rescind or annul a declaration that the principal of all
the Debentures shall be due and payable, provided that, where a consent or
action under the Indenture would require the consent or act of the Holders of
greater than a majority in principal amount of
I-9
<PAGE>
Debentures affected thereby (a "Super Majority"), the Institutional Trustee may
only give such consent or take such action at the written direction of the
Holders of at least the proportion in liquidation amount of the Common
Securities which the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding. Pursuant to this Section 6(c),
the Institutional Trustee shall not revoke any action previously authorized or
approved by a vote of the Holders of the Preferred Securities. Other than with
respect to directing the time, method and place of conducting any remedy
available to the Institutional Trustee or the Debenture Trustee as set forth
above, the Institutional Trustee shall not take any action in accordance with
the directions of the Holders of the Common Securities under this paragraph
unless the Institutional Trustee has obtained an opinion of tax counsel to the
effect that for the purposes of United States federal income tax the Trust will
not be classified as other than a grantor trust on account of such action.
Any approval or direction of Holders of Common Securities may be
given at a separate meeting of Holders of Common Securities convened for such
purpose, at a meeting of all of the Holders of Securities in the Trust or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Common 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 Common 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 consents.
No vote or consent of the Holders of the Common Securities will be
required for the Trust to redeem and cancel Common Securities or to distribute
the Debentures in accordance with the Declaration and the terms of the
Securities.
7. Amendments to Declaration and Indenture. (a) In addition to any
requirements under Section 12.1 of the Declaration, if any proposed amendment to
the Declaration provides for, or the Regular Trustees otherwise propose to
effect, (i) any action that would adversely affect the powers, preferences or
special rights of the Securities, whether by way of amendment to the Declaration
or otherwise, or (ii) the dissolution, winding-up or termination of the Trust,
other than as described in Section 8.1 of the Declaration, then the Holders of
outstanding Securities as a class, will be entitled to vote on such amendment or
proposal (but not on any other amendment or proposal) and such amendment or
proposal shall not be effective except with the approval of the Holders of at
least a Majority in liquidation amount of the Securities, voting together as a
single class; provided, however, if any amendment or proposal referred to in
clause (i) above would adversely affect only the Preferred Securities or only
the Common Securities, then only the affected class will be
I-10
<PAGE>
entitled to vote on such amendment or proposal and such amendment or proposal
shall not be effective except with the approval of a Majority in liquidation
amount of such class of Securities.
(b) In the event the consent of the Institutional Trustee as the
holder of the Debentures is required under the Indenture with respect to any
amendment, modification or termination of the Indenture or the Debentures, the
Institutional Trustee shall request the written direction of the Holders of the
Securities with respect to such amendment, modification or termination and shall
vote with respect to such amendment, modification or termination as directed by
a Majority in liquidation amount of the Securities voting together as a single
class; provided, however, that where a consent under the Indenture would require
the consent of the holders of greater than a majority in aggregate principal
amount of the Debentures (a "Super Majority"), the Institutional Trustee may
only give such consent at the direction of the Holders of at least the
proportion in liquidation amount of the Securities which the relevant Super
Majority represents of the aggregate principal amount of the Debentures
outstanding; provided, further, that the Institutional Trustee shall not take
any action in accordance with the directions of the Holders of the Securities
under this Section 7(b) unless the Institutional Trustee has obtained an opinion
of tax counsel to the effect that for the purposes of United States federal
income tax the Trust will not be classified as other than a grantor trust on
account of such action.
8. Pro Rata. A reference in this Annex I to any payment,
distribution or treatment as being "Pro Rata" shall mean pro rata to each Holder
of Securities according to the aggregate liquidation amount of the Securities
held by the relevant Holder in relation to the aggregate liquidation amount of
all Securities outstanding unless, in relation to a payment, an Event of Default
under the Declaration has occurred and is continuing, in which case any funds
available to make such payment shall be paid first to each Holder of the
Preferred Securities pro rata according to the aggregate liquidation amount of
Preferred Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Preferred Securities outstanding, and only after
satisfaction of all amounts owed to the Holders of the Preferred Securities, to
each Holder of Common Securities pro rata according to the aggregate liquidation
amount of Common Securities held by the relevant Holder relative to the
aggregate liquidation amount of all Common Securities outstanding.
9. Ranking. The Preferred Securities rank pari passu with, and
payment thereon shall be made Pro Rata with, the Common Securities except that,
where an Event of Default occurs and is continuing under the Indenture in
respect of the Debentures held by the Institutional Trustee, the rights of
Holders of the Common Securities to payment in respect of Distributions and
payments upon liquidation, redemption and otherwise are subordinated to the
rights to payment of the Holders of the Preferred Securities.
I-11
<PAGE>
10. Listing. The Regular Trustees shall use their best efforts to
cause the Preferred Securities to be listed for quotation on the New York Stock
Exchange, Inc.
11. Acceptance of Securities Guarantee and Indenture. Each Holder of
Preferred Securities and Common Securities, by the acceptance thereof, agrees to
the provisions of the Preferred Securities Guarantee and the Common Securities
Guarantee, respectively, including the subordination provisions therein, and to
the provisions of the Indenture.
12. No Preemptive Rights. The Holders of the Securities shall have
no preemptive rights to subscribe for any additional securities.
13. Miscellaneous. The foregoing terms set forth in this Annex I
constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the Preferred
Securities Guarantee or the Common Securities Guarantee (as may be appropriate),
and the Indenture to any Holder without charge on written request to the Sponsor
at its principal place of business.
I-12
<PAGE>
EXHIBIT A-1
FORM OF PREFERRED SECURITY CERTIFICATE
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT -
This Preferred Security is a Global Certificate within the meaning of the
Declaration hereinafter referred to and is registered in the name of The
Depository Trust Company (the "Depositary") or a nominee of the Depositary. This
Preferred Security is exchangeable for Preferred Securities registered in the
name of a person other than the Depositary or its nominee only in the limited
circumstances described in the Declaration and no transfer of this Preferred
Security (other than a transfer of this Preferred Security as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary) may be registered except in
limited circumstances.
Unless this Preferred Security is presented by an authorized
representative of The Depository Trust Company, a New York Corporation ("DTC")
to the Trust or its agent for registration of transfer, exchange or payment, and
any Preferred Security issued is registered in the name of Cede & Co. or such
other name as requested by an authorized representative of DTC (and any payment
hereon is made to Cede & Co.), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much as the registered
owner hereof, Cede & Co., has an interest herein.]
Certificate Number:
Number of Preferred Securities: _________
CUSIP NO.: _________
Certificate Evidencing Preferred Securities
of
PLC CAPITAL TRUST III
__% Trust Originated Preferred Securities(SM) ("TOPrS"(SM))
(liquidation amount $25 per Preferred Security)
PLC CAPITAL TRUST III, a statutory business trust formed under the
laws of the State of Delaware (the "Trust"), hereby certifies that ____________
(the "Holder") is the
A1-1
<PAGE>
registered owner of preferred securities of the Trust representing undivided
beneficial interests in the assets of the Trust designated the ___% Trust
Originated Preferred Securities(SM) (liquidation amount $25 per Preferred
Security) (the "Preferred Securities"). The Preferred Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer. The designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Preferred Securities
represented hereby are issued and shall in all respects be subject to the
provisions of the Amended and Restated Declaration of Trust of the Trust dated
as of __________, 199_, as the same may be amended from time to time (the
"Declaration"), including the designation of the terms of the Preferred
Securities as set forth in Annex I to the Declaration. Capitalized terms used
herein but not defined shall have the meaning given them in the Declaration. The
Holder is entitled to the benefits of the Preferred Securities Guarantee to the
extent provided therein. The Sponsor will provide a copy of the Declaration, the
Preferred Securities Guarantee and the Indenture to the Holder without charge
upon written request to the Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Preferred Securities
as evidence of indirect beneficial ownership in the Debentures.
Distributions payable on each Preferred Security will be fixed at a
rate per annum of ___% (the "Coupon Rate") of the stated liquidation amount of
$25 per Preferred Security, such rate being the rate of interest payable on the
Debentures to be held by the Institutional Trustee. Distributions in arrears for
more than one quarter will bear interest thereon compounded quarterly at the
Coupon Rate (to the extent permitted by applicable law). The term
"Distributions" as used herein includes such cash distributions and any such
interest payable unless otherwise stated. A Distribution is payable only to the
extent that payments are made in respect of the Debentures held by the
Institutional Trustee and to the extent the Institutional Trustee has funds
available therefor. The amount of Distributions payable for any period will be
computed for any full quarterly Distribution period on the basis of a 360-day
year of twelve 30-day months, and for any period shorter than a full quarterly
Distribution period for which Distributions are computed, Distributions will be
computed on the basis of the actual number of days elapsed per 90-day quarter.
Except as otherwise described below, Distributions on the Preferred
Securities will be cumulative, will accrue from the date of original issuance
and will be payable quarterly in arrears, on March 31, June 30, September 30 and
December 31 of each year, commencing
A1-2
<PAGE>
on __________, 199_, to Holders of record one (1) Business Day prior to such
payment dates, which payment dates shall correspond to the interest payment
dates on the Debentures; provided however, that if the Preferred Securities are
not then in book-entry only form, such Distributions shall be paid to the
Holders of record on the March 15, June 15, September 15 or December 15, as the
case may be, prior to such payment dates. The Debenture Issuer has the right
under the Indenture to defer payments of interest by extending the interest
payment period from time to time on the Debentures for a period not exceeding 20
consecutive quarters (each an "Extension Period") and, as a consequence of such
deferral, Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accrue with interest thereon (to the extent
permitted by applicable law) at the Coupon Rate compounded quarterly during any
such Extension Period. Prior to the termination of any such Extension Period,
the Debenture Issuer may further extend such Extension Period; provided that
such Extension Period together with all such previous and further extensions
thereof may not exceed 20 consecutive quarters. Payments of accrued
Distributions will be payable to Holders as they appear on the books and records
of the Trust on the record date immediately preceding the end of the Extension
Period. Upon the termination of any Extension Period and the payment of all
amounts then due, the Debenture Issuer may commence a new Extension Period,
subject to the above requirements.
The Preferred Securities shall be redeemable as provided in the
Declaration.
A1-3
<PAGE>
IN WITNESS WHEREOF, the Trust has executed this certificate this
_____ day of __________, 199__.
PLC CAPITAL TRUST III
By:
-----------------------------------
Name:
Title:
A1-4
<PAGE>
-------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security Certificate to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints _______________________________________________________
_______________________________________________________________________ agent to
transfer this Preferred Security Certificate on the books of the Trust. The
agent may substitute another to act for him or her.
Date:_________________
Signature:____________
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
A1-5
<PAGE>
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
The Common Securities may only be transferred by the Debenture
Issuer and any Related Party to the Debenture Issuer or a Related Party of the
Debenture Issuer; provided that, any such transfer is subject to the condition
precedent that the transferor obtain the written opinion of nationally
recognized independent counsel experienced in such matters that such transfer
would not cause more than an insubstantial risk that:
(i) the Trust would not be classified for United States federal
income tax purposes as a grantor Trust; and
(ii) the Trust would be an Investment Company or the transferee
would become an Investment Company.
Certificate Number
Number of Common Securities
Certificate Evidencing Common Securities
of
PLC CAPITAL TRUST III
___% Trust Originated Common Securities
(liquidation amount $25 per Common Security)
PLC CAPITAL TRUST III, a statutory business trust formed under the
laws of the State of Delaware (the "Trust"), hereby certifies that __________
(the "Holder") is the registered owner of common securities of the Trust
representing undivided beneficial interests in the assets of the Trust
designated the ___% Trust Originated Common Securities (liquidation amount $25
per Common Security) (the "Common Securities"). The Common Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer. The designation, rights, privileges, restrictions,
preferences and other terms and
A2-1
<PAGE>
provisions of the Common Securities represented hereby are issued and shall in
all respects be subject to the provisions of the Amended and Restated
Declaration of Trust of the Trust dated as of __________, 199_, as the same may
be amended from time to time (the "Declaration"), including the designation of
the terms of the Common Securities as set forth in Annex I to the Declaration.
Capitalized terms used herein but not defined shall have the meaning given them
in the Declaration. The Holder is entitled to the benefits of the Common
Securities Guarantee to the extent provided therein. The Sponsor will provide a
copy of the Declaration, the Common Securities Guarantee and the Indenture to a
Holder without charge upon written request to the Sponsor at its principal place
of business.
Upon receipt of this certificate, the Sponsor is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Common Securities as
evidence of indirect beneficial ownership in the Debentures.
Distributions payable on each Common Security will be fixed at a
rate per annum of ___% (the "Coupon Rate") of the stated liquidation amount of
$25 per Common Security, such rate being the rate of interest payable on the
Debentures to be held by the Institutional Trustee. Distributions in arrears for
more than one quarter will bear interest thereon compounded quarterly at the
Coupon Rate (to the extent permitted by applicable law). The term
"Distributions" as used herein includes such cash distributions and any such
interest payable unless otherwise stated. A Distribution is payable only to the
extent that payments are made in respect of the Debentures held by the
Institutional Trustee and to the extent the Institutional Trustee has funds
available therefor. The amount of Distributions payable for any period will be
computed for any full quarterly Distribution period on the basis of a 360-day
year of twelve 30-day months, and for any period shorter than a full quarterly
Distribution period for which Distributions are computed, Distributions will be
computed on the basis of the actual number of days elapsed per 90-day quarter.
Except as otherwise described below, Distributions on the Common
Securities will be cumulative, will accrue from the date of original issuance
and will be payable quarterly in arrears, on March 31, June 30, September 30 and
December 31 of each year, commencing on __________, 199_, to Holders of record
one (1) Business Day prior to such payment dates, which payment dates shall
correspond to the interest payment dates on the Debentures; provided, however,
that if the Preferred Securities are not then in book-entry only form, such
Distributions shall be paid to the Holders of record on the March 15, June 15,
September 15 or December 15, as the case may be, prior to such payment dates.
The Debenture Issuer has the right under the Indenture to defer payments of
interest by extending the interest payment
A2-2
<PAGE>
period from time to time on the Debentures for a period not exceeding 20
consecutive quarters (each an "Extension Period") and, as a consequence of such
deferral, Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accrue with interest thereon (to the extent
permitted by applicable law) at the Coupon Rate compounded quarterly during any
such Extension Period. Prior to the termination of any such Extension Period,
the Debenture Issuer may further extend such Extension Period; provided that
such Extension Period together with all such previous and further extensions
thereof may not exceed 20 consecutive quarters. Payments of accrued
Distributions will be payable to Holders as they appear on the books and records
of the Trust on the record date immediately preceding the end of the Extension
Period. Upon the termination of any Extension Period and the payment of all
amounts then due, the Debenture Issuer may commence a new Extension Period,
subject to the above requirements.
The Common Securities shall be redeemable as provided in the
Declaration.
A2-3
<PAGE>
IN WITNESS WHEREOF, the Trust has executed this certificate this
_____ day of __________, 199__.
PLC CAPITAL TRUST III
By:
--------------------------------------
Name:
Title:
A2-4
<PAGE>
---------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common Security
Certificate to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints________________________________________________________
________________________________________________________________________________
________________ agent to transfer this Common Security Certificate on the books
of the Trust. The agent may substitute another to act for him or her.
Date:_____________________
Signature:________________
(Sign exactly as your name appears on the other side of this Common Security
Certificate)
A2-5
<PAGE>
EXHIBIT B
SPECIMEN OF DEBENTURE
B-1
<PAGE>
EXHIBIT C
PURCHASE AGREEMENT
C-1
<PAGE>
EXHIBIT 4(ii)
Draft--July 7, 1997
================================================================================
AMENDED AND RESTATED DECLARATION
OF TRUST
PLC CAPITAL TRUST IV
Dated as of __________, 199_
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I.
INTERPRETATION AND DEFINITIONS
SECTION 1.1. Definitions..............................................2
ARTICLE II.
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application.........................8
SECTION 2.2. Lists of Holders of Securities...........................9
SECTION 2.3. Reports by the Institutional Trustee.....................9
SECTION 2.4. Periodic Reports to Institutional Trustee................9
SECTION 2.5. Evidence of Compliance with Conditions Precedent.........9
SECTION 2.6. Events of Default; Waiver...............................10
SECTION 2.7. Event of Default; Notice................................11
ARTICLE III.
ORGANIZATION
SECTION 3.1. Name....................................................12
SECTION 3.2. Office..................................................12
SECTION 3.3. Purpose.................................................12
SECTION 3.4. Authority...............................................13
SECTION 3.5. Title to Property of the Trust..........................13
SECTION 3.6. Powers and Duties of the Regular Trustees...............13
SECTION 3.7. Prohibition of Actions by the Trust and the Trustees....16
SECTION 3.8. Powers and Duties of the Institutional Trustee..........17
SECTION 3.9. Certain Duties and Responsibilities of the
Institutional Trustee..................................19
SECTION 3.10. Certain Rights of Institutional Trustee................21
SECTION 3.11. Delaware Trustee.......................................23
SECTION 3.12. Execution of Documents.................................23
SECTION 3.13. Not Responsible for Recitals or Issuance of Securities.24
i
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Page
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SECTION 3.14. Duration of Trust......................................24
SECTION 3.15. Mergers................................................24
ARTICLE IV.
SPONSOR
SECTION 4.1. Sponsor's Purchase of Common Securities.................26
SECTION 4.2. Responsibilities of the Sponsor.........................26
ARTICLE V.
TRUSTEES
SECTION 5.1. Number of Trustees......................................27
SECTION 5.2. Delaware Trustee........................................27
SECTION 5.3. Institutional Trustee; Eligibility......................28
SECTION 5.4. Certain Qualifications of Regular Trustees and
Delaware Trustee Generally.............................29
SECTION 5.5. Regular Trustees........................................29
SECTION 5.6. Appointment, Removal and Resignation of Trustees........29
SECTION 5.7. Vacancies Among Trustees................................31
SECTION 5.8. Effect of Vacancies.....................................31
SECTION 5.9. Meetings................................................31
SECTION 5.10. Delegation of Power....................................32
SECTION 5.11. Merger, Conversion, Consolidation or Succession
to Business...........................................32
ARTICLE VI.
DISTRIBUTIONS
SECTION 6.1. Distributions...........................................33
ARTICLE VII.
ISSUANCE OF SECURITIES
ii
<PAGE>
Page
----
SECTION 7.1. General Provisions Regarding Securities.................33
SECTION 7.2. Paying Agent............................................34
ARTICLE VIII.
TERMINATION OF TRUST
SECTION 8.1. Termination of Trust....................................34
ARTICLE IX.
TRANSFER OF INTERESTS
SECTION 9.1. Transfer of Securities..................................35
SECTION 9.2. Transfer of Certificates................................36
SECTION 9.3. Deemed Security Holders.................................36
SECTION 9.4. Book Entry Interests....................................36
SECTION 9.5. Notices to Clearing Agency..............................37
SECTION 9.6. Appointment of Successor Clearing Agency................37
SECTION 9.7. Definitive Preferred Security Certificates..............38
SECTION 9.8. Mutilated, Destroyed, Lost or Stolen Certificates.......38
ARTICLE X.
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1. Liability..............................................39
SECTION 10.2. Exculpation............................................39
SECTION 10.3. Fiduciary Duty.........................................40
SECTION 10.4. Indemnification........................................41
SECTION 10.5. Outside Businesses.....................................44
ARTICLE XI.
ACCOUNTING
iii
<PAGE>
Page
----
SECTION 11.1. Fiscal Year............................................44
SECTION 11.2. Certain Accounting Matters.............................44
SECTION 11.3. Banking................................................45
SECTION 11.4. Withholding............................................45
ARTICLE XII.
AMENDMENTS AND MEETINGS
SECTION 12.1. Amendments.............................................46
SECTION 12.2. Meetings of the Holders of Securities;
Action by Written Consent.............................47
ARTICLE XIII.
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1. Representations and Warranties of
Institutional Trustee.................................49
SECTION 13.2. Representations and Warranties of Delaware Trustee.....50
ARTICLE XIV.
MISCELLANEOUS
SECTION 14.1. Notices................................................51
SECTION 14.2. Governing Law..........................................52
SECTION 14.3. Intention of the Parties...............................52
SECTION 14.4. Headings...............................................52
SECTION 14.5. Successors and Assigns.................................52
SECTION 14.6. Partial Enforceability.................................52
SECTION 14.7. Counterparts...........................................52
ANNEX I TERMS OF SECURITIES
EXHIBIT A-1 FORM OF PREFERRED SECURITY CERTIFICATE
EXHIBIT A-2 FORM OF COMMON SECURITY CERTIFICATE
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EXHIBIT B SPECIMEN OF DEBENTURE
EXHIBIT C PURCHASE AGREEMENT
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CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as amended Declaration
310 (a)..................................................... 5.3(a)
310 (c)..................................................... Inapplicable
311 (c)..................................................... Inapplicable
312 (a)..................................................... 2.2(a)
312 (b)..................................................... 2.2(b)
313......................................................... 2.3
314 (a)..................................................... 2.4
314 (b)..................................................... Inapplicable
314 (c)..................................................... 2.5
314 (d)..................................................... Inapplicable
314 (f)..................................................... Inapplicable
315 (a)..................................................... 3.9(b)
315 (c)..................................................... 3.9(a)
315 (d)..................................................... 3.9(a)
316 (a)..................................................... Annex I
316 (c)..................................................... 3.6(e)
* This Cross-Reference Table does not constitute part of the Declaration and
shall not affect the interpretation of any of its terms or provisions.
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AMENDED AND RESTATED
DECLARATION OF TRUST
OF
PLC CAPITAL TRUST IV
__________, 199_
AMENDED AND RESTATED DECLARATION OF TRUST (this
"Declaration") dated and effective as of __________, 199_, by the Trustees (as
defined herein), the Sponsor (as defined herein) and by the holders, from time
to time, of undivided beneficial interests in the assets of the Trust (as
defined herein) to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor established PLC Capital Trust
IV (the "Trust"), a trust under the Delaware Business Trust Act, pursuant to a
Declaration of Trust dated as of __________, 199_ (the "Original Declaration")
and a Certificate of Trust filed with the Secretary of State of the State of
Delaware on __________, 199_, for the sole purpose of issuing and selling
certain securities representing undivided beneficial interests in the assets of
the Trust and investing the proceeds thereof in certain Debentures of the
Debenture Issuer;
WHEREAS, prior to the execution hereof, no interests in the Trust
have been issued;
WHEREAS, all of the Trustees and the Sponsor, by this Declaration,
amend and restate each and every term and provision of the Original Declaration;
and
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a business trust under the Business Trust Act and that
this Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
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ARTICLE I.
INTERPRETATION AND DEFINITIONS
SECTION 1.1. Definitions. Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in
the preamble above have the respective meanings assigned to them in this
Section 1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to
this Declaration as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles and Sections and
Annexes and Exhibits are to Articles and Sections of and Annexes and
Exhibits to this Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Declaration unless otherwise defined in this Declaration
or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405
of the Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent.
"Authorized Officer" of a Person means any Person that is authorized
to bind such Person.
"Book Entry Interest" means a beneficial interest in a Global
Certificate, ownership and transfers of which shall be maintained and made
through book entries by a Clearing Agency as described in Section 9.4.
"Business Day" means any day other than a day on which banking
institutions in New York, New York are authorized or required by law to close.
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"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code Section 3801 et seq., as it may be amended from time to time,
or any successor legislation.
"Certificate" means a Common Security Certificate or a Preferred
Security Certificate.
"Clearing Agency" means an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as depositary
for the Preferred Securities and in whose name or in the name of a nominee of
that organization shall be registered a Global Certificate and which shall
undertake to effect book entry transfers and pledges of the Preferred
Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Clearing
Agency effects book entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means the "Closing Time" under the Purchase
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, or any successor legislation.
"Commission" means the Securities and Exchange Commission.
"Common Security" has the meaning specified in Section 7.1.
"Common Securities Guarantee" means the guarantee agreement, dated
as of __________, 199_, of the Sponsor in respect of the Common Securities.
"Common Security Certificate" means a definitive certificate in
fully registered form, substantially in the form of Exhibit A-2, representing a
Common Security.
"Company Indemnified Person" means (a) any Regular Trustee; (b) any
Affiliate of any Regular Trustee; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Regular Trustee;
or (d) any officer, employee or agent of the Trust or its Affiliates.
"Corporate Trust Office" means the office of the Institutional
Trustee at which the corporate trust business of the Preferred Guarantee Trustee
shall, at any particular time, be principally administered, which office at the
date of execution of this Declaration located at
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Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
"Covered Person" means: (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates; and (b) any Holder of Securities.
"Debenture Issuer" means Protective Life Corporation, a Delaware
corporation, in its capacity as issuer of the Debentures under the Indenture.
"Debenture Trustee" means AmSouth Bank (as successor by merger to
AmSouth Bank of Alabama, successor by conversion of charter to AmSouth Bank
N.A.), as trustee under the Indenture until a successor is appointed thereunder,
and thereafter such successor trustee.
"Debentures" means the series of Debentures to be issued by the
Debenture Issuer under the Indenture and to be held by the Institutional
Trustee, a specimen certificate for such series of Debentures being
substantially in the form of Exhibit B.
"Delaware Trustee" has the meaning set forth in Section 5.2.
"Definitive Preferred Security Certificates" has the meaning set
forth in Section 9.4.
"Direction" by a Person means a written direction signed:
(a) if the Person is a natural person, by that Person; or
(b) in any other case, in the name of such Person by one or more
Authorized Officers of such Person.
"Distribution" means a distribution payable to Holders of Securities
in accordance with Section 6.1.
"DTC" means The Depository Trust Company, the initial Clearing
Agency.
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"Event of Default" in respect of the Securities means an Event of
Default (as defined in the Indenture) has occurred and is continuing in respect
of the Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in Section
10.4(b).
"Global Certificate" has the meaning set forth in Section 9.4.
"Holder" means a Person in whose name a Certificate representing a
Security is registered, such Person being a beneficial owner within the meaning
of the Business Trust Act.
"Indemnified Person" means a Company Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the Subordinated Indenture dated as of June 1,
1994, from the Debenture Issuer to the Debenture Trustee, and any Subordinated
Indenture supplemental thereto pursuant to which the Debentures are to be issued
(including, without limitation, the Supplemental Indenture No. 6, dated as of
__________, 199_ between the Debenture Issuer and the Debenture Trustee).
"Institutional Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 5.3.
"Institutional Trustee Account" has the meaning set forth in Section
3.8(c).
"Investment Company" means an investment company as defined in the
Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940,
as amended from time to time, or any successor legislation.
"Legal Action" has the meaning set forth in Section 3.6(g).
"Majority in liquidation amount of the Securities" means, except as
provided in the terms of the Preferred Securities or by the Trust Indenture Act,
Holder(s) of outstanding Securities voting together as a single class or, as the
context may require, Holders of outstanding Preferred Securities or Holders of
outstanding Common Securities voting separately as a class, who are the record
owners of more than 50% of the aggregate liquidation
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amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined) of all outstanding Securities of
the relevant class.
"Ministerial Action" has the meaning set forth in Annex I.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person; provided that any
Officers' Certificate delivered with respect to compliance with a condition or
covenant provided for in this Declaration shall include:
(a) a statement that each officer signing such certificate has read
the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering such certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Paying Agent" has the meaning specified in Section 7.2.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Securities Guarantee" means the guarantee agreement,
dated as of __________, 199_, of the Sponsor in respect of the Preferred
Securities.
"Preferred Security" has the meaning specified in Section 7.1.
"Preferred Security Beneficial Owner" means, with respect to a Book
Entry Interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Clearing Agency, or on the books of a
Person maintaining an account with such
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Clearing Agency (directly as a Clearing Agency Participant or as an indirect
participant, in each case in accordance with the rules of such Clearing Agency).
"Preferred Security Certificate" means a certificate representing a
Preferred Security substantially in the form of Exhibit A-1.
"Purchase Agreement" means the Purchase Agreement for the offering
and sale of Preferred Securities in the form of Exhibit C.
"Quorum" means a majority of the Regular Trustees or, if there are
only two Regular Trustees, both of them.
"Regular Trustee" has the meaning set forth in Section 5.1.
"Related Party" means, with respect to the Sponsor, any direct or
indirect wholly owned subsidiary of the Sponsor or any other Person that owns,
directly or indirectly, 100% of the outstanding voting securities of the
Sponsor.
"Responsible Officer" means, with respect to the Institutional
Trustee, any officer within the Corporate Trust Office of the Institutional
Trustee, including any vice-president, any assistant vice-president, any
assistant secretary, the treasurer, any assistant treasurer or other officer of
the Corporate Trust Office of the Institutional Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's knowledge of
and familiarity with the particular subject.
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act.
"Securities" means the Common Securities and the Preferred
Securities.
"Securities Act" means the Securities Act of 1933, as amended from
time to time or any successor legislation.
"Special Event" has the meaning set forth in Annex I hereto.
"Sponsor" means Protective Life Corporation, a Delaware corporation,
or any successor entity in a merger, consolidation or amalgamation, in its
capacity as sponsor of the Trust.
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"Super Majority" has the meaning set forth in Section 2.6 (a) (ii).
"Tax Event" has the meaning set forth in Annex I hereto.
"10% in liquidation amount of the Securities" means, except as
provided in the terms of the Preferred Securities or by the Trust Indenture Act,
Holder(s) of outstanding Securities voting together as a single class or, as the
context may require, Holders of outstanding Preferred Securities or Holders of
outstanding Common Securities voting separately as a class, who are the record
owners of 10% or more of the aggregate liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus accrued
and unpaid Distributions to the date upon which the voting percentages are
determined) of all outstanding Securities of the relevant class.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation.
ARTICLE II.
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application. (a) This Declaration
is subject to the provisions of the Trust Indenture Act that are required to be
part of this Declaration and shall, to the extent applicable, be governed by
such provisions.
(b) The Institutional Trustee shall be the only Trustee which is a
Trustee for the purposes of the Trust Indenture Act.
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(c) If and to the extent that any provision of this Declaration
limits, qualifies or conflicts with the duties imposed by Section 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this Declaration
shall not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
SECTION 2.2. Lists of Holders of Securities. (a) The Sponsor and the
Regular Trustees on behalf of the Trust shall provide the Institutional Trustee
(i) within 14 days after each record date for payment of Distributions, a list,
in such form as the Institutional Trustee may reasonably require, of the names
and addresses of the Holders of the Securities ("List of Holders") as of such
record date, provided that neither the Sponsor nor the Regular Trustees, on
behalf of the Trust, shall be obligated to provide such List of Holders at any
time the List of Holders does not differ from the most recent List of Holders
given to the Institutional Trustee by the Sponsor and the Regular Trustees on
behalf of the Trust, and (ii) at any other time, within 30 days of receipt by
the Trust of a written request for a List of Holders as of a date no more than
14 days before such List of Holders is given to the Institutional Trustee. The
Institutional Trustee shall preserve, in as current a form as is reasonably
practicable, all information contained in Lists of Holders given to it or which
it receives in the capacity as Paying Agent (if acting in such capacity);
provided that the Institutional Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Institutional Trustee shall comply with its obligations
under Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3. Reports by the Institutional Trustee. Within 60 days
after May 15 of each year, the Institutional Trustee shall provide to the
Holders of the Preferred Securities such reports as are required by Section 313
of the Trust Indenture Act, if any, in the form and in the manner provided by
Section 313 of the Trust Indenture Act. The Institutional Trustee shall also
comply with the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4. Periodic Reports to Institutional Trustee. Each of the
Sponsor and the Regular Trustees, on behalf of the Trust, shall provide to the
Institutional Trustee and the Holders such documents, reports and information as
required by Section 314 (if any) of the Trust Indenture Act and the compliance
certificate required by such Section 314 of the Trust Indenture Act in the form,
in the manner and at the times required thereby.
SECTION 2.5. Evidence of Compliance with Conditions Precedent. Each
of the Sponsor and the Regular Trustees, on behalf of the Trust, shall provide
to the Institutional
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Trustee such evidence of compliance with any conditions precedent, if any,
provided for in this Declaration that relate to any of the matters set forth in
Section 314(c) of the Trust Indenture Act. Any certificate or opinion required
to be given by an officer pursuant to Section 314(c)(1) may be given in the form
of an Officers' Certificate.
SECTION 2.6. Events of Default; Waiver. (a) The Holders of a
Majority in liquidation amount of Preferred Securities may, by vote, on behalf
of the Holders of all of the Preferred Securities, waive any past Event of
Default in respect of the Preferred Securities and its consequences, provided
that, if the underlying Event of Default under the Indenture:
(i) is not waivable under the Indenture, the Event of Default under
the Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority in
principal amount of the holders of the Debentures (a "Super Majority") to
be waived under the Indenture, the Event of Default under the Declaration
may only be waived by the vote of the Holders of at least the proportion
in liquidation amount of the Preferred Securities that the relevant Super
Majority represents of the aggregate principal amount of the Debentures
outstanding.
The foregoing provisions of this Section 2.6(a) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such
default shall cease to exist, and any Event of Default with respect to the
Preferred Securities arising therefrom shall be deemed to have been cured, for
every purpose of this Declaration, but no such waiver shall extend to any
subsequent or other default or Event of Default with respect to the Preferred
Securities or impair any right consequent thereon. Any waiver by the Holders of
the Preferred Securities of an Event of Default with respect to the Preferred
Securities shall also be deemed to constitute a waiver by the Holders of the
Common Securities of any such Event of Default with respect to the Common
Securities for all purposes of this Declaration without any further act, vote,
or consent of the Holders of the Common Securities.
(b) The Holders of a Majority in liquidation amount of the Common
Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Indenture, except where the Holders of
the Common Securities are deemed to have waived such Event of Default
under the
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Declaration as provided below in this Section 2.6(b), the Event of Default
under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority to be waived,
except where the Holders of the Common Securities are deemed to have
waived such Event of Default under the Declaration as provided below in
this Section 2.6(b), the Event of Default under the Declaration may only
be waived by the vote of the Holders of at least the proportion in
liquidation amount of the Common Securities that the relevant Super
Majority represents of the aggregate principal amount of the Debentures
outstanding;
provided further, that each Holder of Common Securities will be deemed to have
waived any such Event of Default and all Events of Default with respect to the
Common Securities and its consequences until all Events of Default with respect
to the Preferred Securities have been cured, waived or otherwise eliminated, and
until such Events of Default have been so cured, waived or otherwise eliminated,
the Institutional Trustee will be deemed with respect to the Preferred
Securities to be acting solely on behalf of the Holders of the Preferred
Securities and only the Holders of the Preferred Securities will have the right
to direct the Institutional Trustee in accordance with the terms of the
Securities. The foregoing provisions of this Section 2.6(b) shall be in lieu of
Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such
Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby
expressly excluded from this Declaration and the Securities, as permitted by the
Trust Indenture Act. Subject to the foregoing provisions of this Section 2.6(b),
upon such waiver, any such default shall cease to exist and any Event of Default
with respect to the Common Securities arising therefrom shall be deemed to have
been cured for every purpose of this Declaration, but no such waiver shall
extend to any subsequent or other default or Event of Default with respect to
the Common Securities or impair any right consequent thereon.
(c) A waiver of an Event of Default under the Indenture by the
Institutional Trustee at the direction of the Holders of the Preferred
Securities constitutes a waiver of the corresponding Event of Default with
respect to the Preferred Securities under this Declaration. Any waiver of an
Event of Default under the Indenture by the Institutional Trustee at the
direction of the Holders of the Preferred Securities shall also be deemed to
constitute a waiver by the Holders of the Common Securities of the corresponding
Event of Default under this Declaration with respect to the Common Securities
for all purposes of this Declaration without further act, vote or consent of the
Holders of the Common Securities. The foregoing provisions of this Section
2.6(c) shall be in lieu of Section 316(a)(1)(B) of the Trust Indenture Act and
such Section 316(a)(1)(B) of the Trust Indenture Act is hereby expressly
excluded from this Declaration and the Securities, as permitted by the Trust
Indenture Act.
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SECTION 2.7. Event of Default; Notice. (a) The Institutional Trustee
shall, within 90 days after the occurrence of an Event of Default, transmit by
mail, first class postage prepaid, to the Holders of the Securities, notices of
all defaults with respect to the Securities actually known to a Responsible
Officer of the Institutional Trustee, unless such defaults have been cured
before the giving of such notice (the term "defaults" for the purposes of this
Section 2.7 being hereby defined to be an Event of Default as defined in the
Indenture, not including any periods of grace provided for therein and
irrespective of the giving of any notice provided therein); provided that,
except with respect to a default in the payment of principal of (or premium, if
any) or interest on any of the Debentures or in the payment of any sinking fund
installment established for the Debentures, the Institutional Trustee shall be
protected in withholding such notice if and so long as a Responsible Officer of
the Institutional Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of the Securities.
(b) The Institutional Trustee shall not be deemed to have knowledge
of any default except:
(i) a default under Sections 5.1 or 5.3 of the Indenture; or
(ii) any default as to which the Institutional Trustee shall have
received written notice or of which a Responsible Officer of the
Institutional Trustee charged with the administration of the Declaration
shall have actual knowledge.
ARTICLE III.
ORGANIZATION
SECTION 3.1. Name. The Trust is named "PLC Capital Trust IV," as
such name may be modified from time to time by the Regular Trustees following
written notice to the Holders of Securities and the filing of a certificate of
amendment under the Business Trust Act. The Trust's activities may be conducted
under the name of the Trust or any other name deemed advisable by the Regular
Trustees.
SECTION 3.2. Office. The address of the principal office of the
Trust is 2801 Highway 280 South, Birmingham, Alabama 35223. On ten Business
Days' written notice to the Holders of Securities, the Regular Trustees may
designate another principal office.
SECTION 3.3. Purpose. The exclusive purposes and functions of the
Trust are
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(i) issuing the Preferred Securities and the Common Securities representing
undivided beneficial interests in the assets of the Trust, (ii) investing the
gross proceeds of the Securities in the Debentures and (iii) engaging in only
those other activities necessary or incidental thereto. The Trust shall not
borrow money, issue debt or reinvest proceeds derived from investments, pledge
any of its assets, or otherwise undertake (or permit to be undertaken) any
activity that would cause the Trust not to be classified for United States
federal income tax purposes as a grantor trust.
The Trustees, the Sponsor and the Holders of the Preferred
Securities and Common Securities (by their acceptance of such Securities) agree
not to take any position for United States federal income tax purposes which is
contrary to the classification of the Trust as a grantor trust.
SECTION 3.4. Authority. Subject to the limitations provided in this
Declaration and to the specific duties of the Institutional Trustee, the Regular
Trustees shall have exclusive and complete authority to carry out the purposes
of the Trust. An action taken by the Regular Trustees in accordance with their
powers shall constitute the act of and serve to bind the Trust and an action
taken by the Institutional Trustee on behalf of the Trust in accordance with its
powers shall constitute the act of and serve to bind the Trust. In dealing with
the Trustees acting on behalf of the Trust, no person shall be required to
inquire into the authority of the Trustees to bind the Trust. Persons dealing
with the Trust are entitled to rely conclusively on the power and authority of
the Trustees as set forth in this Declaration.
SECTION 3.5. Title to Property of the Trust. Except as provided in
Section 3.8 with respect to the Debentures and the Institutional Trustee
Account or as otherwise provided in this Declaration, legal title to all assets
of the Trust shall be vested in the Trust. The Holders shall not have legal
title to any part of the assets of the Trust, but shall have an undivided
beneficial interest in the assets of the Trust.
SECTION 3.6. Powers and Duties of the Regular Trustees. The Regular
Trustees shall have the exclusive power, duty and authority to cause the Trust
to engage in the following activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that
the Trust may issue no more than one series of Preferred Securities and no
more than one series of Common Securities, and, provided further, that
there shall be no interests in the Trust other than the Securities, and
the issuance of Securities shall be limited to a simultaneous issuance of
both Preferred Securities and Common Securities on the Closing Date;
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(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission the registration
statement on Form S-3 prepared by the Sponsor, including any
amendments thereto, pertaining to the Preferred Securities;
(ii) execute and file any documents prepared by the Sponsor,
or take any acts as determined by the Sponsor to be necessary or
advisable in order to qualify or register all or part of the
Preferred Securities in any State in which the Sponsor has
determined to qualify or register such Preferred Securities for
sale;
(iii) execute and file an application, prepared by the
Sponsor, to the New York Stock Exchange, Inc. or any other national
stock exchange or the Nasdaq Stock Market's National Market for
listing upon notice of issuance of any Preferred Securities pursuant
to Section 3.8;
(iv) execute and file with the Commission a registration
statement on Form 8-A, including any amendments thereto, prepared by
the Sponsor, relating to the registration of the Preferred
Securities under Section 12(b) of the Exchange Act; and
(v) execute and enter into the Purchase Agreement providing
for the sale of the Preferred Securities;
(c) to acquire the Debentures with the proceeds of the sale of the
Preferred Securities and the Common Securities; provided, however, that
the Regular Trustees shall cause legal title to the Debentures to be held
of record in the name of the Institutional Trustee for the benefit of the
Holders of the Preferred Securities and the Holders of Common Securities
pursuant to Section 3.8;
(d) to give the Sponsor and the Institutional Trustee prompt written
notice of the occurrence of a Tax Event; provided that the Regular
Trustees shall consult with the Sponsor and the Institutional Trustee
before taking or refraining from taking any Ministerial Action in relation
to a Tax Event;
(e) to establish a record date with respect to all actions to be
taken hereunder that require a record date to be established, including
and with respect to, for the purposes of Section 316(c) of the Trust
Indenture Act, Distributions, voting rights,
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redemptions and exchanges, and to issue relevant notices to the Holders of
Preferred Securities and Holders of Common Securities as to such actions
and applicable record dates;
(f) to take all actions and perform such duties as may be required
of the Regular Trustees pursuant to the terms of the Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate, resort
to legal action, or otherwise adjust claims or demands of or against the
Trust ("Legal Action"), unless pursuant to Section 3.8(e), the
Institutional Trustee has the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors,
and consultants and pay reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's obligations under
the Trust Indenture Act;
(j) to give the certificate required by Section 314(a)(4) of the
Trust Indenture Act to the Institutional Trustee, which certificate may be
executed by any Regular Trustee;
(k) to incur expenses that are necessary, appropriate, convenient or
incidental to carry out any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar and
transfer agent for the Securities;
(m) to give prompt written notice to the Holders of the Securities
of any notice received from the Debenture Issuer of its election to defer
payments of interest on the Debentures by extending the interest payment
period under the Indenture;
(n) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of
the State of Delaware and of each other jurisdiction in which such
existence is necessary to protect the limited liability of the Holders of
the Preferred Securities or to enable the Trust to effect the purposes for
which the Trust was created;
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(o) to take any action, not inconsistent with this Declaration or
with applicable law, that the Regular Trustees determine in their
discretion to be necessary or desirable in carrying out the activities of
the Trust as set out in this Section 3.6, including, but not limited to:
(i) causing the Trust not to be deemed to be an Investment
Company required to be registered under the Investment Company Act;
(ii) causing the Trust to continue to be classified for United
States federal income tax purposes as a grantor trust; and
(iii) cooperating with the Debenture Issuer to ensure that the
Debentures will be treated as indebtedness of the Debenture Issuer
for United States federal income tax purposes,
provided that such action does not adversely affect the interests of the
Holders;
(p) to take all action necessary to cause all applicable tax returns
and tax information reports that are required to be filed with respect to
the Trust to be duly prepared and filed by the Regular Trustees, on behalf
of the Trust; and
(q) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing.
The Regular Trustees must exercise the powers set forth in this
Section 3.6 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Regular Trustees shall not take any
action that is inconsistent with the purposes and functions of the Trust set
forth in Section 3.3.
Subject to this Section 3.6, the Regular Trustees shall have none of
the powers or the authority of the Institutional Trustee set forth in Section
3.8.
Any expenses incurred by the Regular Trustees pursuant to this
Section 3.6 shall be reimbursed by the Debenture Issuer.
SECTION 3.7. Prohibition of Actions by the Trust and the Trustees.
(a) The Trust shall not, and the Trustees (including the Institutional Trustee)
shall not, engage in any activity other than as required or authorized by this
Declaration. In particular, the Trust shall not and the Trustees (including the
Institutional Trustee) shall cause the Trust not to:
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(i) invest any proceeds received by the Trust from holding the
Debentures, but shall distribute all such proceeds to Holders of
Securities pursuant to the terms of this Declaration and of the
Securities;
(ii) acquire any assets other than as expressly provided herein;
(iii) possess Trust property for other than a Trust purpose as set
forth in Section 3.3;
(iv) make any loans or incur any indebtedness other than loans
represented by the Debentures;
(v) possess any power or otherwise act in such a way as to vary the
Trust assets or the terms of the Securities in any way whatsoever;
(vi) issue any securities or other evidences of beneficial ownership
of, or beneficial interest in, the Trust other than the Securities; or
(vii) other than as provided in this Declaration (including, without
limitation, Annex I), (A) direct the time, method and place of exercising
any trust or power conferred upon the Debenture Trustee with respect to
the Debentures, (B) waive any past default under the Indenture, (C)
exercise any right to rescind or annul any declaration that the principal
of all the Debentures shall be due and payable, or (D) consent to any
amendment, modification or termination of the Indenture or the Debentures
where such consent shall be required unless the Trust shall have received
an opinion of nationally recognized tax counsel to the effect that such
modification will not cause more than an insubstantial risk that for
United States federal income tax purposes the Trust will be classified as
other than a grantor trust as a result of such action.
SECTION 3.8. Powers and Duties of the Institutional Trustee. (a) The
legal title to the Debentures shall be owned by and held of record in the name
of the Institutional Trustee in trust for the benefit of the Holders of the
Securities. The right, title and interest of the Institutional Trustee to the
Debentures shall vest automatically in each Person who may hereafter be
appointed as Institutional Trustee in accordance with Section 5.6. Such vesting
and cessation of title shall be effective whether or not conveyancing documents
with regard to the Debentures have been executed and delivered.
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(b) The Institutional Trustee shall not transfer its right, title
and interest in the Debentures to the Regular Trustees or to the Delaware
Trustee (if the Institutional Trustee does not also act as Delaware Trustee).
(c) The Institutional Trustee shall:
(i) establish and maintain a segregated non-interest bearing
trust account (the "Institutional Trustee Account") in the name of
and under the exclusive control of the Institutional Trustee on
behalf of the Holders of the Securities and, upon the receipt of
payments of funds made in respect of the Debentures held by the
Institutional Trustee, deposit such funds into the Institutional
Trustee Account and make payments to the Holders of the Preferred
Securities and Holders of the Common Securities from the
Institutional Trustee Account in accordance with Section 6.1. Funds
in the Institutional Trustee Account shall be held uninvested until
disbursed in accordance with this Declaration. The Institutional
Trustee Account shall be an account that is maintained with a
banking institution the rating on whose long-term unsecured
indebtedness is at least equal to the rating assigned to the
Preferred Securities by a "nationally recognized statistical rating
organization," as that term is defined for purposes of Rule
436(g)(2) under the Securities Act;
(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect the redemption of the Preferred
Securities and the Common Securities pursuant to this Declaration
(including, without limitation, Annex I) to the extent the
Debentures are redeemed or mature; and
(iii) upon written notice of distribution issued by the
Regular Trustees in accordance with the terms of the Securities,
engage in such ministerial activities as shall be necessary or
appropriate to effect the distribution of the Debentures to Holders
of Securities upon the occurrence of certain special events (as may
be defined in the terms of the Securities) arising from a change in
law or a change in legal interpretation or other specified
circumstances pursuant to the terms of the Securities.
(d) The Institutional Trustee shall take all actions and perform
such duties as may be specifically required of the Institutional Trustee
pursuant to the terms of the Securities.
(e) The Institutional Trustee shall take any Legal Action which
arises out of or in connection with an Event of Default of which a Responsible
Officer of the Institutional
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Trustee has actual knowledge of the Institutional Trustee's duties and
obligations under this Declaration or the Trust Indenture Act.
(f) The Institutional Trustee shall not resign as a Trustee unless
either:
(i) the Trust has been completely liquidated and the proceeds
of the liquidation distributed to the Holders of Securities pursuant
to the terms of the Securities; or
(ii) a Successor Institutional Trustee (as defined in Section
5.6) has been appointed and has accepted that appointment in
accordance with Section 5.6.
(g) The Institutional Trustee shall have the legal power to exercise
all of the rights, powers and privileges of a holder of Debentures under the
Indenture and, if an Event of Default actually known to a Responsible Officer of
the Institutional Trustee occurs and is continuing, the Institutional Trustee
shall, for the benefit of Holders of the Securities, enforce its rights as
holder of the Debentures subject to the rights of the Holders pursuant to the
terms of such Securities.
(h) Subject to this Section 3.8, the Institutional Trustee shall
have none of the duties, liabilities, powers or the authority of the Regular
Trustees set forth in Section 3.6.
The Institutional Trustee must exercise the powers set forth in this
Section 3.8 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Institutional Trustee shall not take
any action that is inconsistent with the purposes and functions of the Trust set
out in Section 3.3.
SECTION 3.9. Certain Duties and Responsibilities of the
Institutional Trustee. (a) The Institutional Trustee, before the occurrence of
any Event of Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Declaration and no implied covenants shall be read into this
Declaration against the Institutional Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.6) of which a
Responsible Officer of the Institutional Trustee has actual knowledge, the
Institutional Trustee shall exercise such of the rights and powers vested in it
by this Declaration, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
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(b) No provision of this Declaration shall be construed to relieve
the Institutional Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Institutional Trustee
shall be determined solely by the express provisions of this
Declaration and the Institutional Trustee shall not be liable except
for the performance of such duties and obligations as are
specifically set forth in this Declaration, and no implied covenants
or obligations shall be read into this Declaration against the
Institutional Trustee; and
(B) in the absence of bad faith on the part of the
Institutional Trustee, the Institutional Trustee may conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Institutional Trustee and conforming to the
requirements of this Declaration; but in the case of any such
certificates or opinions that by any provision hereof are
specifically required to be furnished to the Institutional Trustee,
the Institutional Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this
Declaration;
(ii) the Institutional Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Institutional
Trustee, unless it shall be proved that the Institutional Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Institutional Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of not less than a Majority in
liquidation amount of the Securities relating to the time, method and
place of conducting any proceeding for any remedy available to the
Institutional Trustee, or exercising any trust or power conferred upon the
Institutional Trustee under this Declaration;
(iv) no provision of this Declaration shall require the
Institutional Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in
the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Declaration or indemnity
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reasonably satisfactory to the Institutional Trustee against such risk or
liability is not reasonably assured to it;
(v) the Institutional Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and the
Institutional Trustee Account shall be to deal with such property in a
similar manner as the Institutional Trustee deals with similar property
for its own account, subject to the protections and limitations on
liability afforded to the Institutional Trustee under this Declaration and
the Trust Indenture Act;
(vi) the Institutional Trustee shall have no duty or liability for
or with respect to the value, genuineness, existence or sufficiency of the
Debentures or the payment of any taxes or assessments levied thereon or in
connection therewith;
(vii) the Institutional Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree with the
Sponsor. Money held by the Institutional Trustee need not be segregated
from other funds held by it except in relation to the Institutional
Trustee Account maintained by the Institutional Trustee pursuant to
Section 3.8(c)(i) and except to the extent otherwise required by law; and
(viii) the Institutional Trustee shall not be responsible for
monitoring the compliance by the Regular Trustees or the Sponsor with
their respective duties under this Declaration, nor shall the
Institutional Trustee be liable for any default or misconduct of the
Regular Trustees or the Sponsor.
SECTION 3.10. Certain Rights of Institutional Trustee. (a) Subject
to the provisions of Section 3.9:
(i) the Institutional Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and
to have been signed, sent or presented by the proper party or parties;
(ii) any direction or act of the Sponsor or the Regular Trustees
contemplated by this Declaration shall be sufficiently evidenced by a
Direction or an Officers' Certificate;
(iii) whenever, in the administration of this Declaration, the
Institutional Trustee shall deem it desirable that a matter be proved or
established before taking,
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suffering or omitting any action hereunder, the Institutional Trustee
(unless other evidence is herein specifically prescribed) may, in the
absence of bad faith on its part, request and conclusively rely upon an
Officers' Certificate which, upon receipt of such request, shall be
promptly delivered by the Sponsor or the Regular Trustees;
(iv) the Institutional Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or securities
laws) or any rerecording, refiling or registration thereof;
(v) the Institutional Trustee may consult with counsel or other
experts and the advice or opinion of such counsel and experts with respect
to legal matters or advice within the scope of such experts' area of
expertise shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good
faith and in accordance with such advice or opinion, it being understood
that such counsel may be counsel to the Sponsor or any of its Affiliates,
and may include any of its employees. The Institutional Trustee shall have
the right at any time to seek instructions concerning the administration
of this Declaration from any court of competent jurisdiction;
(vi) the Institutional Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration at
the request or direction of any Holder, unless such Holder shall have
provided to the Institutional Trustee security and indemnity, reasonably
satisfactory to the Institutional Trustee, against the costs, expenses
(including attorneys' fees and expenses and the expenses of the
Institutional Trustee's agents, nominees or custodians) and liabilities
that might be incurred by it in complying with such request or direction,
including such reasonable advances as may be requested by the
Institutional Trustee provided, that, nothing contained in this Section
3.10(a)(vi) shall be taken to relieve the Institutional Trustee, upon the
occurrence of an Event of Default, of its obligation to exercise the
rights and powers vested in it by this Declaration;
(vii) the Institutional Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Institutional Trustee, in
its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit;
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(viii) the Institutional Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents, custodians, nominees or attorneys and the Institutional
Trustee shall not be responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care by it hereunder;
(ix) any action taken by the Institutional Trustee or its agents
hereunder shall bind the Trust and the Holders of the Securities, and the
signature of the Institutional Trustee or its agents alone shall be
sufficient and effective to perform any such action and no third party
shall be required to inquire as to the authority of the Institutional
Trustee to so act or as to its compliance with any of the terms and
provisions of this Declaration, both of which shall be conclusively
evidenced by the Institutional Trustee's or its agent's taking such
action;
(x) whenever in the administration of this Declaration the
Institutional Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Institutional Trustee (i) may request instructions from the
Holders of the Securities which instructions may only be given by the
Holders of the same proportion in liquidation amount of the Securities as
would be entitled to direct the Institutional Trustee under the terms of
the Securities in respect of such remedy, right or action, (ii) may
refrain from enforcing such remedy or right or taking such other action
until such instructions are received, and (iii) shall be protected in
conclusively relying on or acting in accordance with such instructions;
and
(xi) except as otherwise expressly provided by this Declaration, the
Institutional Trustee shall not be under any obligation to take any action
that is discretionary under the provisions of this Declaration.
(b) No provision of this Declaration shall be deemed to impose any
duty or obligation on the Institutional Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Institutional Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Institutional
Trustee shall be construed to be a duty.
SECTION 3.11. Delaware Trustee. Notwithstanding any other provision
of this Declaration other than Section 5.2, the Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities of the Regular Trustees or the Institutional Trustee
described in this Declaration. Except as set forth
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in Section 5.2, the Delaware Trustee shall be a Trustee for the sole and limited
purpose of fulfilling the requirements of Section 3807 of the Business Trust
Act.
SECTION 3.12. Execution of Documents. Unless otherwise determined by
the Regular Trustees, and except as otherwise required by the Business Trust
Act, any Regular Trustee is authorized to execute on behalf of the Trust any
documents that the Regular Trustees have the power and authority to execute
pursuant to Section 3.6; provided that, the registration statement referred to
in Section 3.6(b)(i), including any amendments thereto, shall be signed by all
of the Regular Trustees.
SECTION 3.13. Not Responsible for Recitals or Issuance of
Securities. The recitals contained in this Declaration and the Securities shall
be taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as to
the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Declaration or the Securities.
SECTION 3.14. Duration of Trust. The Trust, unless terminated
earlier pursuant to the provisions of Article VIII hereof, shall have existence
for fifty-five (55) years from the issuance of the Debentures.
SECTION 3.15. Mergers. (a) The Trust may not consolidate,
amalgamate, merge with or into, or be replaced by, or convey, transfer or lease
its properties and assets substantially as an entirety to any corporation or
other body, except as described in Sections 3.15(b) and (c).
(b) The Trust may, with the consent of the Regular Trustees (or, if
there are more than two, a majority of the Regular Trustees) and without the
consent of the Holders of the Securities, the Delaware Trustee or the
Institutional Trustee, consolidate, amalgamate, merge with or into, or be
replaced by a trust organized as such under the laws of any State; provided
that:
(i) such successor entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of the Trust
under the Securities; or
(B) substitutes for the Preferred Securities other securities
having substantially the same terms as the Preferred Securities (the
"Successor Securities") so long as the Successor Securities rank the
same as the Preferred
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Securities rank with respect to Distributions and payments upon
liquidation, redemption and otherwise;
(ii) the Debenture Issuer expressly acknowledges a trustee of the
Successor Entity that possesses the same powers and duties as the
Institutional Trustee as the Holder of the Debentures;
(iii) the Preferred Securities or any Successor Securities are
listed, or any Successor Securities will be listed upon notification of
issuance, on any national securities exchange or with another organization
on which the Preferred Securities are then listed or quoted;
(iv) such merger, consolidation, amalgamation or replacement does
not cause the Preferred Securities (including any Successor Securities) to
be downgraded by any nationally recognized statistical rating
organization;
(v) such merger, consolidation, amalgamation or replacement does not
adversely affect the rights, preferences and privileges of the Holders of
the Securities (including any Successor Securities) in any material
respect (other than with respect to any dilution of such Holders'
interests in the Preferred Securities as a result of such merger,
consolidation, amalgamation or replacement);
(vi) such Successor Entity has a purpose identical to that of the
Trust;
(vii) prior to such merger, consolidation, amalgamation or
replacement, the Sponsor has received an opinion of a nationally
recognized independent counsel to the Trust experienced in such matters to
the effect that:
(A) such merger, consolidation, amalgamation or replacement
does not adversely affect the rights, preferences and privileges of
the Holders of the Securities (including any Successor Securities)
in any material respect (other than with respect to any dilution of
the Holders' interest in the new entity); and
(B) following such merger, consolidation, amalgamation or
replacement, neither the Trust nor the Successor Entity will be
required to register as an Investment Company;
(C) following such merger, consolidation, amalgamation or
replacement, the Trust (or the Successor Entity) will continue to be
classified as a grantor trust for United States federal income tax
purposes; and
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(viii) the Sponsor guarantees the obligations of such Successor
Entity under the Successor Securities at least to the extent provided by
the Preferred Securities Guarantee.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except
with the consent of Holders of 100% in liquidation amount of the Securities,
consolidate, amalgamate, merge with or into, or be replaced by any other entity
or permit any other entity to consolidate, amalgamate, merge with or into, or
replace it if such consolidation, amalgamation, merger or replacement would
cause the Trust or Successor Entity to be classified as other than a grantor
trust for United States federal income tax purposes.
ARTICLE IV.
SPONSOR
SECTION 4.1. Sponsor's Purchase of Common Securities. On the Closing
Date at the same time as the Preferred Securities are sold, the Sponsor will
purchase all of the Common Securities issued by the Trust, in an amount at least
equal to 3% of the aggregate capital of the Trust after giving effect to such
sale of Preferred Securities.
SECTION 4.2. Responsibilities of the Sponsor. In connection with the
issue and sale of the Preferred Securities, the Sponsor shall have the exclusive
right and responsibility to engage in the following activities:
(a) to prepare for filing by the Trust with the Commission a
registration statement on Form S-3 in relation to the Preferred
Securities, including any amendments thereto;
(b) to determine the States in which to take appropriate action to
qualify or register for sale all or part of the Preferred Securities and
to do any and all such acts, other than actions which must be taken by the
Trust, advise the Trust of actions it must take, and prepare for execution
and filing any documents to be executed and filed by the Trust, as the
Sponsor deems necessary or advisable in order to comply with the
applicable laws of any such States;
(c) to prepare for filing by the Trust an application to the New
York Stock Exchange or any other national stock exchange or the Nasdaq
National Market for listing upon notice of issuance of any Preferred
Securities;
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(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the
Preferred Securities under Section 12(b) of the Exchange Act, including
any amendments thereto; and
(e) to negotiate the terms of the Purchase Agreement providing for
the sale of the Preferred Securities.
ARTICLE V.
TRUSTEES
SECTION 5.1. Number of Trustees. The number of Trustees initially
shall be three (3), and:
(a) at any time before the issuance of any Securities, the Sponsor
may, by written instrument, increase or decrease the number of Trustees;
and
(b) after the issuance of any Securities, the number of Trustees may
be increased or decreased by vote of the Holders of a Majority in
liquidation amount of the Common Securities voting as a class at a meeting
of the Holders of the Common Securities; provided, however, that the
number of Trustees shall in no event be less than two (2); provided
further that (1) one Trustee meets the requirements of Sections 5.2(a) or
(b); (2) there shall be at least one Trustee who is an employee or officer
of, or is affiliated with, the Sponsor (a "Regular Trustee"); and (3) one
Trustee shall be the Institutional Trustee for so long as this Declaration
is required to qualify as an indenture under the Trust Indenture Act, and
such Trustee may also serve as Delaware Trustee if it meets the applicable
requirements.
SECTION 5.2. Delaware Trustee. If required by the Business Trust
Act, one Trustee (the "Delaware Trustee") shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) if not a natural person, an entity which has its principal place
of business in the State of Delaware, and otherwise meets the requirements
of applicable law, provided that, if the Institutional Trustee has its
principal place of business in the State of Delaware and otherwise meets
the requirements of applicable law, then the Institutional Trustee shall
also be the Delaware Trustee and Section 3.11 shall have no application.
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(c) The initial Delaware Trustee shall be:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
SECTION 5.3. Institutional Trustee; Eligibility. (a) There shall at
all times be one Trustee which shall act as Institutional Trustee and which
shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation or Person permitted by the
Commission to act as an institutional trustee under the Trust Indenture
Act, authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination by Federal,
State, Territorial or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to
the requirements of the supervising or examining authority referred to
above, then for the purposes of this Section 5.3(a)(ii), the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Institutional Trustee shall cease to be
eligible to so act under Section 5.3(a), the Institutional Trustee shall
immediately resign in the manner and with the effect set forth in Section
5.6(c).
(c) If the Institutional Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Institutional Trustee and the Holder of the Common Securities
(as if it were the obligor referred to in Section 310(b) of the Trust Indenture
Act) shall in all respects comply with the provisions of Section 310(b) of the
Trust Indenture Act.
(d) The Preferred Securities Guarantee shall be deemed to be
specifically described in this Declaration for purposes of clause (i) of the
first provision contained in Section 310(b) of the Trust Indenture Act.
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(e) The initial Institutional Trustee shall be:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
SECTION 5.4. Certain Qualifications of Regular Trustees and Delaware
Trustee Generally. Each Regular Trustee and the Delaware Trustee (unless the
Institutional Trustee also acts as Delaware Trustee) shall be either a natural
person who is at least 21 years of age or a legal entity that shall act through
one or more Authorized Officers.
SECTION 5.5. Regular Trustees. The initial Regular Trustees shall
be:
Richard J. Bielen
c/o Protective Life Corporation
2801 Highway 280 South
Birmingham, Alabama 35223
Jerry W. DeFoor
c/o Protective Life Corporation
2801 Highway 280 South
Birmingham, Alabama 35223
(a) Except as expressly set forth in this Declaration and except if
a meeting of the Regular Trustees is called with respect to any matter over
which the Regular Trustees have power to act, any power of the Regular Trustees
may be exercised by, or with the consent of, any one such Regular Trustee.
(b) As more specifically provided in Section 5.10, a Regular Trustee
may, by power of attorney consistent with applicable law, delegate to any other
natural person over the age of 21 his or her power for the purposes of signing
any documents which the Regular Trustees have power and authority to cause the
Trust to execute pursuant to Section 3.6.
SECTION 5.6. Appointment, Removal and Resignation of Trustees. (a)
subject to Section 5.6(b), Trustees may be appointed or removed without cause at
any time:
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(i) until the issuance of any Securities, by written instrument
executed by the Sponsor; and
(ii) after the issuance of any Securities, by vote of the Holders of
a Majority in liquidation amount of the Common Securities voting as a
class at a meeting of the Holders of the Common Securities.
(b) (i) The Trustee that acts as Institutional Trustee shall not be
removed in accordance with Section 5.6(a) until a Successor Institutional
Trustee (a "Successor Institutional Trustee") has been appointed and has
accepted such appointment by written instrument executed by such Successor
Institutional Trustee and delivered to the Regular Trustees and the
Sponsor; and
(ii) the Trustee that acts as Delaware Trustee shall not be removed
in accordance with this Section 5.6(a) until a successor Trustee
possessing the qualifications to act as Delaware Trustee under Sections
5.2 and 5.4 (a "Successor Delaware Trustee") has been appointed and has
accepted such appointment by written instrument executed by such Successor
Delaware Trustee and delivered to the Regular Trustees and the Sponsor.
(c) A Trustee appointed to office shall hold office until his
successor shall have been appointed or until his death, removal or resignation.
Any Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing signed by such Trustee and delivered to
the Sponsor and the Trust, which resignation shall take effect upon such
delivery or upon such later date as is specified therein; provided, however,
that:
(i) No such resignation of the Trustee that acts as the
Institutional Trustee shall be effective:
(A) until a Successor Institutional Trustee has been appointed
and has accepted such appointment by instrument executed by such
Successor Institutional Trustee and delivered to the Trust, the
Sponsor and the resigning Institutional Trustee; or
(B) until the assets of the Trust have been completely
liquidated and the proceeds thereof distributed to the holders of
the Securities; and
(ii) no such resignation of the Trustee that acts as the Delaware
Trustee shall be effective until a Successor Delaware Trustee has been
appointed and has accepted such
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appointment by instrument executed by such Successor Delaware Trustee and
delivered to the Trust, the Sponsor and the resigning Delaware Trustee.
(d) The Holders of the Common Securities shall use their best
efforts to promptly appoint a Successor Delaware Trustee or Successor
Institutional Trustee, as the case may be, if the Institutional Trustee or the
Delaware Trustee delivers an instrument of resignation in accordance with this
Section 5.6.
(e) If no Successor Institutional Trustee or Successor Delaware
Trustee shall have been appointed and accepted appointment as provided in this
Section 5.6 within 60 days after delivery to the Sponsor and the Trust of an
instrument of resignation, the resigning Institutional Trustee or Delaware
Trustee, as applicable, may petition any court of competent jurisdiction for
appointment of a Successor Institutional Trustee or Successor Delaware Trustee.
Such court may thereupon, after prescribing such notice, if any, as it may deem
proper and prescribe, appoint a Successor Institutional Trustee or Successor
Delaware Trustee, as the case may be.
(f) No Institutional Trustee or Delaware Trustee shall be liable for
the acts or omissions to act of any Successor Institutional Trustee or Successor
Delaware Trustee, as the case may be.
SECTION 5.7. Vacancies Among Trustees. If a Trustee ceases to hold
office for any reason and the number of Trustees is not reduced pursuant to
Section 5.1, or if the number of Trustees is increased pursuant to Section 5.1,
a vacancy shall occur. A resolution certifying the existence of such vacancy by
the Regular Trustees (or, if there are more than two, a majority of the Regular
Trustees) shall be conclusive evidence of the existence of such vacancy. Any
such vacancy shall be filled with a Trustee appointed in accordance with Section
5.6.
SECTION 5.8. Effect of Vacancies. The death, resignation,
retirement, removal, bankruptcy, dissolution, liquidation, incompetence or
incapacity to perform the duties of a Trustee shall not operate to annul the
Trust. Whenever a vacancy in the number of Regular Trustees shall occur, until
such vacancy is filled by the appointment of a Regular Trustee in accordance
with Section 5.6, the Regular Trustees in office, regardless of their number,
shall have all the powers granted to the Regular Trustees and shall discharge
all the duties imposed upon the Regular Trustees by this Declaration.
SECTION 5.9. Meetings. If there is more than one Regular Trustee,
meetings of the Regular Trustees shall be held from time to time upon the call
of any Regular Trustee. Regular meetings of the Regular Trustees may be held at
a time and place fixed by resolution
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of the Regular Trustees. Notice of any in-person meetings of the Regular
Trustees shall be hand delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than 48 hours before
such meeting. Notice of any telephonic meetings of the Regular Trustees or any
committee thereof shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier) not less than 24
hours before such meeting. Notices shall contain a brief statement of the time,
place and anticipated purposes of the meeting. The presence (whether in person
or by telephone) of a Regular Trustee at a meeting shall constitute a waiver of
notice of such meeting except where a Regular Trustee attends a meeting for the
express purpose of objecting to the transaction of any activity on the ground
that the meeting has not been lawfully called or convened. Unless provided
otherwise in this Declaration, any action of the Regular Trustees may be taken
at a meeting by vote of a majority of the Regular Trustees present (whether in
person or by telephone) and eligible to vote with respect to such matter,
provided that a Quorum is present, or without a meeting by the unanimous written
consent of the Regular Trustees. In the event there is only one Regular Trustee,
any and all action of such Regular Trustee shall be evidenced by a written
consent of such Regular Trustee.
SECTION 5.10. Delegation of Power. (a) Any Regular Trustee may, by
power of attorney consistent with applicable law, delegate to any other natural
person over the age of 21 his or her power for the purpose of executing any
documents contemplated in Section 3.6, including any registration statement or
amendment thereto filed with the Commission, or making any other governmental
filing; and
(b) the Regular Trustees shall have power to delegate from time to
time to such of their number or to officers of the Trust the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Regular Trustees or otherwise as the Regular Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
SECTION 5.11. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Institutional Trustee or the Delaware
Trustee, as the case may be, may be merged or converted or with which either may
be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Institutional Trustee or the Delaware Trustee, as the
case may be, shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Institutional Trustee or
the Delaware Trustee, as the case may be, shall be the successor of the
Institutional Trustee or the Delaware Trustee, as the case may be, hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
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ARTICLE VI.
DISTRIBUTIONS
SECTION 6.1. Distributions. Holders shall receive Distributions (as
defined herein) in accordance with the applicable terms of the relevant Holder's
Securities. Distributions shall be made on the Preferred Securities and the
Common Securities in accordance with the preferences set forth in their
respective terms. If and to the extent that the Debenture Issuer makes a payment
of interest (including Compounded Interest (as defined in the Indenture) and
Additional Interest (as defined in the Indenture)), premium and/or principal on
the Debentures held by the Institutional Trustee (the amount of any such payment
being a "Payment Amount"), the Institutional Trustee shall and is directed, to
the extent funds are available for that purpose, to make a distribution (a
"Distribution") of such Payment Amount to Holders.
ARTICLE VII.
ISSUANCE OF SECURITIES
SECTION 7.1. General Provisions Regarding Securities. (a) The
Regular Trustees shall, on behalf of the Trust, issue one class of preferred
securities representing undivided beneficial interests in the assets of the
Trust having such terms as are set forth in Annex I (the "Preferred Securities")
and one class of common securities representing undivided beneficial interests
in the assets of the Trust having such terms as are set forth in Annex I (the
"Common Securities"). The Trust shall issue no securities or other interests in
the assets of the Trust other than the Preferred Securities and the Common
Securities.
(b) The Certificates shall be signed on behalf of the Trust by a
Regular Trustee. Such signature shall be the manual signature of any present or
any future Regular Trustee. In case any Regular Trustee of the Trust who shall
have signed any of the Securities shall cease to be such Regular Trustee before
the Certificates so signed shall be delivered by the Trust, such Certificates
nevertheless may be delivered as though the person who signed such Certificates
had not ceased to be such Regular Trustee; and any Certificate may be signed on
behalf of the Trust by such persons who, at the actual date of execution of such
Security, shall be the Regular Trustees of the Trust, although at the date of
the execution and delivery of the Declaration any such person was not such a
Regular Trustee. Certificates shall be printed, lithographed or engraved or may
be produced in any other manner as is reasonably acceptable to the Regular
Trustees, as evidenced by their execution thereof, and may have such letters,
numbers or other marks of identification or designation and such legends or
endorsements as
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the Regular Trustees may deem appropriate, or as may be required to comply with
any law or with any rule or regulation of any stock exchange on which Securities
may be listed, or to conform to usage.
(c) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(d) Upon issuance of the Securities as provided in this Declaration,
the Securities so issued shall be deemed to be validly issued, fully paid and
(subject to Section 10.1) non-assessable.
(e) Every Person, by virtue of having become a Holder or a Preferred
Security Beneficial Owner in accordance with the terms of this Declaration,
shall be deemed to have expressly assented and agreed to the terms of, and shall
be bound by, this Declaration.
SECTION 7.2. Paying Agent. In the event that the Preferred
Securities are not in book-entry only form, the Trust shall maintain in the
borough of Manhattan, The City of New York, State of New York, an office or
agency where the Preferred Securities may be presented for payment ("Paying
Agent"), and any such Paying Agent shall comply with Section 317(b) of the Trust
Indenture Act. The Trust may appoint the Paying Agent and may appoint one or
more additional paying agents in such other locations as it shall determine. The
term "Paying Agent" includes any such additional paying agent. The Trust may
change any Paying Agent without prior notice to any Holder. The Trust shall
notify the Institutional Trustee of the name and address of any Agent not a
party to this Declaration. If the Trust fails to appoint or maintain another
entity as Paying Agent, the Institutional Trustee shall act as such. The Trust
or any of its Affiliates may act as Paying Agent. The Institutional Trustee
shall initially act as Paying Agent for the Preferred Securities and the Common
Securities.
ARTICLE VIII.
TERMINATION OF TRUST
SECTION 8.1. Termination of Trust. (a) The Trust shall dissolve in
the earlier to occur of 55 years after the issuance of the Debentures or:
(i) upon the bankruptcy of the Sponsor;
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(ii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor or the revocation of the Sponsor's
charter and the expiration of 90 days after the date of revocation without
a reinstatement thereof;
(iii) upon the consent of a Majority in liquidation amount of the
Securities affected thereby voting together as a single class to dissolve
the Trust;
(iv) upon the entry of a decree of judicial dissolution of the
Holder of the Common Securities, the Sponsor or the Trust;
(v) when all of the Securities shall have been called for redemption
and the amounts necessary for redemption thereof shall have been paid to
the Holders, in each case in accordance with the terms of the Securities;
(vi) at the election of the Sponsor (which is wholly within its sole
discretion) at any time pursuant to which the Trust shall have been
dissolved in accordance with the terms of the Securities as set forth in
Annex I and all of the Debentures endorsed thereon shall have been
distributed to the Holders of Securities in exchange for all of the
Securities; or
(vii) before the issuance of any Securities, with the consent of all
of the Regular Trustees and the Sponsor.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a) and upon completion of the winding-up of the Trust
and payment of all liabilities of the Trust, the Trustees shall file a
certificate of cancellation with the Secretary of State of the State of Delaware
and the Trust shall terminate.
(c) The provisions of Article X shall survive the termination of the
Trust.
ARTICLE IX.
TRANSFER OF INTERESTS
SECTION 9.1. Transfer of Securities. (a) Securities may only be
transferred, in whole or in part, in accordance with the terms and conditions
set forth in this Declaration and in the terms of the Securities. Any transfer
or purported transfer of any Security not made in accordance with this
Declaration shall be null and void.
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(b) Subject to this Article IX, Preferred Securities shall be freely
transferable.
(c) Subject to this Article IX, the Sponsor and any Related Party
may only transfer Common Securities to the Sponsor or a Related Party of the
Sponsor; provided that, any such transfer is subject to the condition precedent
that the transferor obtain the written opinion of nationally recognized
independent counsel experienced in such matters that such transfer would not
cause more than an insubstantial risk that:
(i) the Trust would not continue to be classified for United States
federal income tax purposes as a grantor trust; and
(ii) the Trust would be an Investment Company or the transferee
would become an Investment Company.
SECTION 9.2. Transfer of Certificates. The Regular Trustees shall
provide for the registration of Certificates and of transfers of Certificates,
which will be effected without charge but only upon payment (with such indemnity
as the Regular Trustees may require) in respect of any tax or other government
charges that may be imposed in relation to it. Upon surrender for registration
of transfer of any Certificate, the Regular Trustees shall cause one or more new
Certificates to be issued in the name of the designated transferee or
transferees. Every Certificate surrendered for registration of transfer shall be
accompanied by a written instrument of transfer in form satisfactory to the
Regular Trustees duly executed by the Holder or such Holder's attorney duly
authorized in writing. Each Certificate surrendered for registration of transfer
shall be canceled by the Regular Trustees. A transferee of a Certificate shall
be entitled to the rights and subject to the obligations of a Holder hereunder
upon the receipt by such transferee of a Certificate. By acceptance of a
Certificate, each transferee shall be deemed to have agreed to be bound by this
Declaration.
SECTION 9.3. Deemed Security Holders. The Trustees may treat the
Person in whose name any Certificate shall be registered on the books and
records of the Trust as the sole holder of such Certificate and of the
Securities represented by such Certificate for purposes of receiving
Distributions and for all other purposes whatsoever and, accordingly, shall not
be bound to recognize any equitable or other claim to or interest in such
Certificate or in the Securities represented by such Certificate on the part of
any Person, whether or not the Trust shall have actual or other notice thereof.
SECTION 9.4. Book Entry Interests. Unless otherwise specified in the
terms of the Preferred Securities, the Preferred Securities Certificates, on
original issuance, will be issued in the form of one or more fully registered,
global Preferred Security Certificates (each a "Global Certificate"), to be
delivered to DTC, the initial Clearing Agency, by, or on behalf
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of, the Trust. Such Global Certificate(s) shall initially be registered on the
books and records of the Trust in the name of Cede & Co., the nominee of DTC,
and no Preferred Security Beneficial Owner will receive a definitive Preferred
Security Certificate representing such Preferred Security Beneficial Owner's
interests in such Global Certificate(s), except as provided in Section 9.7.
Unless and until definitive, fully registered Preferred Security Certificates
(the "Definitive Preferred Security Certificates") have been issued to the
Preferred Security Beneficial Owners pursuant to Section 9.7:
(a) the provisions of this Section 9.4 shall be in full force and
effect;
(b) the Trust and the Trustees shall be entitled to deal with the
Clearing Agency for all purposes of this Declaration (including the
payment of Distributions on the Global Certificate(s) and receiving
approvals, votes or consents hereunder) as the Holder of the Preferred
Securities and the sole holder of the Global Certificate(s) and shall have
no obligation to the Preferred Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.4 conflict
with any other provisions of this Declaration, the provisions of this
Section 9.4 shall control; and
(d) the rights of the Preferred Security Beneficial Owners shall be
exercised only through the Clearing Agency and shall be limited to those
established by law and agreements between such Preferred Security
Beneficial Owners and the Clearing Agency and/or the Clearing Agency
Participants and the Clearing Agency shall receive and transmit payments
of Distributions on the Global Certificates to such Clearing Agency
Participants. DTC will make book entry transfers among the Clearing Agency
Participants.
SECTION 9.5. Notices to Clearing Agency. Whenever a notice or other
communication to the Preferred Security Holders is required under this
Declaration, unless and until Definitive Preferred Security Certificates shall
have been issued to the Preferred Security Beneficial Owners pursuant to Section
9.7, the Regular Trustees shall give all such notices and communications
specified herein to be given to the Preferred Security Holders to the Clearing
Agency, and shall have no notice obligations to the Preferred Security
Beneficial Owners.
SECTION 9.6. Appointment of Successor Clearing Agency. If any
Clearing Agency elects to discontinue its services as securities depositary with
respect to the Preferred Securities, the Regular Trustees may, in their sole
discretion, appoint a successor Clearing Agency with respect to such Preferred
Securities.
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SECTION 9.7. Definitive Preferred Security Certificates. If:
(a) a Clearing Agency elects to discontinue its services as
securities depositary with respect to the Preferred Securities and a
successor Clearing Agency is not appointed within 90 days after such
discontinuance pursuant to Section 9.6; or
(b) the Regular Trustees elect after consultation with the Sponsor
to terminate the book entry system through the Clearing Agency with
respect to the Preferred Securities, then:
(c) Definitive Preferred Security Certificates shall be prepared by
the Regular Trustees on behalf of the Trust with respect to such Preferred
Securities; and
(d) upon surrender of the Global Certificate(s) by the Clearing
Agency, accompanied by registration instructions, the Regular Trustees
shall cause Definitive Preferred Security Certificates to be delivered to
Preferred Security Beneficial Owners in accordance with the instructions
of the Clearing Agency. Neither the Trustees nor the Trust shall be liable
for any delay in delivery of such instructions and each of them may
conclusively rely on and shall be protected in relying on, said
instructions of the Clearing Agency. The Definitive Preferred Security
Certificates shall be printed, lithographed or engraved or may be produced
in any other manner as is reasonably acceptable to the Regular Trustees,
as evidenced by their execution thereof, and may have such letters,
numbers or other marks of identification or designation and such legends
or endorsements as the Regular Trustees may deem appropriate, or as may be
required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on
which Preferred Securities may be listed, or to conform to usage.
SECTION 9.8. Mutilated, Destroyed, Lost or Stolen Certificates. If:
(a) any mutilated Certificates should be surrendered to the Regular
Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Regular Trustees such security
or indemnity as may be required by them to keep each of them harmless;
then, in the absence of notice that such Certificate shall have been acquired by
a bona fide purchaser, any Regular Trustee on behalf of the Trust shall execute
and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Certificate, a new Certificate of
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like denomination. In connection with the issuance of any new Certificate under
this Section 9.8, the Regular Trustees may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith. Any duplicate Certificate issued pursuant to this Section
shall constitute conclusive evidence of an ownership interest in the relevant
Securities, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
ARTICLE X.
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1. Liability. (a) Except as expressly set forth in this
Declaration, the Debentures, the Preferred Securities Guarantee, the Common
Securities Guarantee and the terms of the Securities, the Sponsor shall not be:
(i) personally liable for the return of any portion of the capital
contributions (or any return thereon) of the Holders of the Securities
which shall be made solely from assets of the Trust; or
(ii) required to pay to the Trust or to any Holder of Securities any
deficit upon dissolution of the Trust or otherwise.
(b) The Holder of the Common Securities shall be liable for all of
the debts and obligations of the Trust (other than with respect to the
Securities) to the extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the
Holders of the Preferred Securities shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
SECTION 10.2. Exculpation. (a) No Indemnified Person shall be
liable, responsible or accountable in damages or otherwise to the Trust or any
Covered Person for any loss, damage or claim incurred by reason of any act
performed or omission made by such Indemnified Person in good faith on behalf of
the Trust and in a manner such Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Indemnified Person by this
Declaration or by law, except that an Indemnified Person shall be liable for any
such loss, damage or claim incurred by reason of such Indemnified Person's
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gross negligence (or ordinary negligence in the case of the Institutional
Trustee) or willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust 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 Trust, 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 Holders of Securities might properly be paid.
SECTION 10.3. Fiduciary Duty. (a) To the extent that, at law or in
equity, an Indemnified Person has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to any other Covered Person, an
Indemnified Person acting under this Declaration shall not be liable to the
Trust or to any other Covered Person for its good faith reliance on the
provisions of this Declaration. The provisions of this Declaration, to the
extent that they restrict the duties and liabilities of an Indemnified Person
otherwise existing at law or in equity (other than the duties imposed on the
Institutional Trustee under the Trust Indenture Act), are agreed by the parties
hereto to replace such other duties and liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between
any Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein provides that an Indemnified Person shall act in
a manner that is, or provides terms that are, fair and reasonable to
the Trust or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise.
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(c) Whenever in this Declaration an Indemnified Person is permitted
or required to make a decision:
(i) in its "discretion" or under a grant of similar authority, the
Indemnified Person shall be entitled to consider 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 Trust 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 Declaration or
by applicable law.
SECTION 10.4. Indemnification. (a) (i) The Sponsor shall indemnify,
to the full extent permitted by law, any Company Indemnified 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 the Trust) by reason
of the fact that he is or was a Company Indemnified Person against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him 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 the Trust, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the Company
Indemnified Person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Trust, and, with
respect to any criminal action or proceeding, had reasonable cause to believe
that his conduct was unlawful.
(ii) The Sponsor shall indemnify, to the full extent permitted by
law, any Company Indemnified Person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit by or in the
right of the Trust to procure a judgment in its favor by reason of the fact that
he is or was a Company Indemnified Person against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Trust
and except that no such indemnification shall be made in respect of any claim,
issue or matter as to which such Company Indemnified Person shall have been
adjudged to be liable to the Trust unless and only to the extent that the Court
of Chancery of Delaware or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
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reasonably entitled to indemnity for such expenses which such Court of Chancery
or such other court shall deem proper.
(iii) To the extent that a Company Indemnified Person shall be
successful on the merits or otherwise (including dismissal of an action without
prejudice or the settlement of an action without admission of liability) in
defense of any action, suit or proceeding referred to in paragraphs (i) and (ii)
of this Section 10.4(a), or in defense of any claim, issue or matter therein, he
shall be indemnified, to the full extent permitted by law, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of this
Section 10.4(a) (unless ordered by a court) shall be made by the Sponsor only as
authorized in the specific case upon a determination that indemnification of the
Company Indemnified Person is proper in the circumstances because he has met the
applicable standard of conduct set forth in paragraphs (i) and (ii). Such
determination shall be made (1) by the Regular Trustees by a majority vote of a
quorum consisting of such Regular Trustees who were not parties to such action,
suit or proceeding, (2) if such a quorum is not obtainable, or, even if
obtainable, if a quorum of disinterested Regular Trustees so directs, by
independent legal counsel in a written opinion, or (3) by the Common Security
Holder of the Trust.
(v) Expenses (including attorneys' fees) incurred by a Company
Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in paragraphs (i) and (ii)
of this Section 10.4(a) shall be paid by the Sponsor in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of such Company Indemnified Person to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
Sponsor as authorized in this Section 10.4(a). Notwithstanding the foregoing, no
advance shall be made by the Sponsor if a determination is reasonably and
promptly made (i) by the Regular Trustees by a majority vote of a quorum of
disinterested Regular Trustees, (ii) if such a quorum is not obtainable, or,
even if obtainable, if a quorum of disinterested Regular Trustees so directs, by
independent legal counsel in a written opinion or (iii) the Common Security
Holder of the Trust, that, based upon the facts known to the Regular Trustees,
counsel or the Common Security Holder at the time such determination is made,
such Company Indemnified Person acted in bad faith or in a manner that such
person did not believe to be in or not opposed to the best interests of the
Trust, or, with respect to any criminal proceeding, that such Company
Indemnified Person believed or had reasonable cause to believe his conduct was
unlawful. In no event shall any advance be made in instances where the Regular
Trustees, independent legal counsel or Common Security Holder reasonably
determine that such person deliberately breached his duty to the Trust or its
Common or Preferred Security Holders.
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(vi) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other paragraphs of this Section 10.4(a) shall not be
deemed exclusive of any other rights to which those seeking indemnification and
advancement of expenses may be entitled under any agreement, vote of
stockholders or disinterested directors of the Sponsor or Preferred Security
Holders of the Trust or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office. All rights to
indemnification under this Section 10.4(a) shall be deemed to be provided by a
contract between the Sponsor and each Company Indemnified Person who serves in
such capacity at any time while this Section 10.4(a) is in effect. Any repeal or
modification of this Section 10.4(a) shall not affect any rights or obligations
then existing.
(vii) The Sponsor or the Trust may purchase and maintain insurance
on behalf of any person who is or was a Company Indemnified Person against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Sponsor would have the
power to indemnify him against such liability under the provisions of this
Section 10.4(a).
(viii) For purposes of this Section 10.4(a), references to "the
Trust" shall include, in addition to the resulting or surviving entity, any
constituent entity (including any constituent of a constituent) absorbed in a
consolidation or merger, so that any person who is or was a director, trustee,
officer or employee of such constituent entity, or is or was serving at the
request of such constituent entity as a director, trustee, officer, employee or
agent of another entity, shall stand in the same position under the provisions
of this Section 10.4(a) with respect to the resulting or surviving entity as he
would have with respect to such constituent entity if its separate existence had
continued.
(ix) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section 10.4(a) shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a Company
Indemnified Person and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(b) The Sponsor agrees to indemnify (i) the Institutional Trustee,
(ii) the Delaware Trustee, (iii) any Affiliate of the Institutional Trustee and
the Delaware Trustee, and (iv) any officers, directors, shareholders, members,
partners, employees, representatives, custodians, nominees or agents of the
Institutional Trustee and the Delaware Trustee (each of the Persons in (i)
through (iv) being referred to as a "Fiduciary Indemnified Person") for, and to
hold each Fiduciary Indemnified Person harmless against, any loss, liability or
expense incurred without gross negligence (or, in the case of the Institutional
Trustee, pursuant to Section 3.9, negligence) or bad faith on its part, arising
out of or in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses
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(including reasonable legal fees and expenses) of defending itself against or
investigating any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in this Section 10.4(b) shall survive the satisfaction
and discharge of this Declaration.
SECTION 10.5. Outside Businesses. Any Covered Person, the Sponsor,
the Delaware Trustee and the Institutional Trustee may engage in or possess an
interest in other business ventures of any nature or description, independently
or with others, similar or dissimilar to the business of the Trust, and the
Trust and the Holders of Securities shall have no rights by virtue of this
Declaration in and to such independent ventures or the income or profits derived
therefrom, and the pursuit of any such venture, even if competitive with the
business of the Trust, shall not be deemed wrongful or improper. No Covered
Persons, the Sponsor, the Delaware Trustee, or the Institutional Trustee shall
be obligated to present any particular investment or other opportunity to the
Trust even if such opportunity is of a character that, if presented to the
Trust, could be taken by the Trust, and any Covered Person, the Sponsor, the
Delaware Trustee and the Institutional Trustee shall have the right to take for
its own account (individually or as a partner or fiduciary) or to recommend to
others any such particular investment or other opportunity. Any Covered Person,
the Delaware Trustee and the Institutional Trustee may engage or be interested
in any financial or other transaction with the Sponsor or any Affiliate of the
Sponsor, or may act as depositary for, trustee or agent for, or act on any
committee or body of holders of, securities or other obligations of the Sponsor
or its Affiliates.
ARTICLE XI.
ACCOUNTING
SECTION 11.1. Fiscal Year. The fiscal year ("Fiscal Year") of the
Trust shall be the calendar year, or such other year as is required by the Code.
SECTION 11.2. Certain Accounting Matters. (a) At all times during
the existence of the Trust, the Regular Trustees shall keep, or cause to be
kept, full books of account, records and supporting documents, which shall
reflect in reasonable detail, each transaction of the Trust. The books of
account shall be maintained on the accrual method of accounting, in accordance
with generally accepted accounting principles, consistently applied. The Trust
shall use the accrual method of accounting for United States federal income tax
purposes. The books of account and the records of the Trust shall be examined by
and reported upon as of the end of each Fiscal Year of the Trust by a firm of
independent certified public accountants selected by the Regular Trustees.
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(b) The Regular Trustees shall cause to be duly prepared and
delivered to each of the Holders of Securities, any annual United States federal
income tax information statement, required by the Code, containing such
information with regard to the Securities held by each Holder as is required by
the Code and the Treasury Regulations. The Regular Trustees shall endeavor to
deliver all such statements within 30 days after the end of each Fiscal Year of
the Trust.
(c) The Regular Trustees shall cause to be duly prepared and filed
with the appropriate taxing authority, an annual United States federal income
tax return, on a Form 1041 or such other form required by United States federal
income tax law, and any other annual income tax returns required to be filed by
the Regular Trustees on behalf of the Trust with any state or local taxing
authority.
SECTION 11.3. Banking. The Trust shall maintain one or more bank
accounts in the name and for the sole benefit of the Trust; provided, however,
that all payments of funds in respect of the Debentures held by the
Institutional Trustee shall be made directly to the Institutional Trustee
Account and no other funds of the Trust shall be deposited in the Institutional
Trustee Account. The sole signatories for such accounts shall be designated by
the Regular Trustees; provided, however, that the Institutional Trustee shall
designate the signatories for the Institutional Trustee Account.
SECTION 11.4. Withholding. The Trust and the Regular Trustees shall
comply with all withholding requirements under United States federal, state and
local law. The Trust shall request, and the Holders shall provide to the Trust,
such forms or certificates as are necessary to establish an exemption from
withholding with respect to each Holder or beneficial owner, and any
representations and forms as shall reasonably be requested by the Trust to
assist it in determining the extent of, and in fulfilling, its withholding
obligations. The Regular Trustees shall file required forms with applicable
jurisdictions and, unless an exemption from withholding is properly established
by a Holder or beneficial owner, shall remit amounts withheld with respect to
the Holder or beneficial owner to applicable jurisdictions. To the extent that
the Trust is required to withhold and pay over any amounts to any authority with
respect to distributions or allocations to any Holder or beneficial owner, the
amount withheld shall be deemed to be a distribution in the amount of the
withholding to the Holder or beneficial owner. In the event of any claimed over
withholding, Holders shall be limited to an action against the applicable
jurisdiction. If the amount required to be withheld was not withheld from actual
Distributions made, the Trust may reduce subsequent Distributions by the amount
of such withholding.
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ARTICLE XII.
AMENDMENTS AND MEETINGS
SECTION 12.1. Amendments. (a) Except as otherwise provided in this
Declaration or by any applicable terms of the Securities, this Declaration may
only be amended by a written instrument approved and executed by:
(i) the Sponsor and the Regular Trustees (or, if there are more than
two Regular Trustees, a majority of the Regular Trustees);
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Institutional Trustee, the Institutional
Trustee; and
(iii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, the Delaware Trustee;
(b) no amendment shall be made, and any such purported amendment
shall be void and ineffective:
(i) unless, in the case of any proposed amendment, the Institutional
Trustee shall have first received an Officers' Certificate from each of
the Trust and the Sponsor that such amendment is permitted by, and
conforms to, the terms of this Declaration (including the terms of the
Securities);
(ii) unless, in the case of any proposed amendment which affects the
rights, powers, duties, obligations or immunities of the Institutional
Trustee, the Institutional Trustee shall have also first received an
opinion of counsel (who may be counsel to the Sponsor or the Trust) that
such amendment is permitted by, and conforms to, the terms of this
Declaration (including the terms of the Securities); and
(iii) to the extent the result of such amendment would be to:
(A) cause the trust to fail to continue to be classified for
purposes of United States federal income taxation as a grantor
trust;
(B) reduce or otherwise adversely affect the powers of the
Institutional Trustee in contravention of the Trust Indenture Act;
or
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(C) cause the Trust to be deemed to be an Investment Company
required to be registered under the Investment Company Act;
(c) at such time after the Trust has issued any Securities that
remain outstanding, any amendment that would adversely affect the rights,
privileges or preferences of any Holder of Securities may be effected only with
such additional requirements as may be set forth in the terms of such
Securities;
(d) Section 10.1(c) and this Section 12.1 shall not be amended
without the consent of all of the Holders of the Securities;
(e) Article IV shall not be amended without the consent of the
Holders of a Majority in liquidation amount of the Common Securities;
(f) the rights of the holders of the Common Securities under Article
V to increase or decrease the number of, and appoint and remove, Trustees shall
not be amended without the consent of the Holders of a Majority in liquidation
amount of the Common Securities; and
(g) notwithstanding Section 12.1(c), this Declaration may be amended
without the consent of the Holders of the Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this Declaration that
may be defective or inconsistent with any other provision of this
Declaration;
(iii) add to the covenants, restrictions or obligations of the
Sponsor;
(iv) conform to any change in Rule 3a-5 or written change in
interpretation or application of Rule 3a-5 by any legislative body, court,
government agency or regulatory authority, which change does not have a
material adverse effect on the right, preferences or privileges of the
Holders; and
(v) modify, eliminate and add to any provision of this Declaration
to such extent as may be necessary, provided such modification,
elimination or addition would not adversely affect the rights, privileges
or preference of any Holder of the Securities.
SECTION 12.2. Meetings of the Holders of Securities; Action by
Written Consent. (a) Meetings of the Holders of any class of Securities may be
called at any time by
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the Regular Trustees (or as provided in the terms of the Securities) to consider
and act on any matter on which Holders of such class of Securities are entitled
to act under the terms of this Declaration, the terms of the Securities or the
rules of any stock exchange on which the Preferred Securities are listed or
admitted for trading. The Regular Trustees shall call a meeting of the Holders
of such class if directed to do so by the Holders of at least 10% in liquidation
amount of such class of Securities. Such direction shall be given by delivering
to the Regular Trustees one or more calls in a writing stating that the signing
Holders of Securities wish to call a meeting and indicating the general or
specific purpose for which the meeting is to be called. Any Holders of
Securities calling a meeting shall specify in writing the Security Certificates
held by the Holders of Securities exercising the right to call a meeting and
only those Securities evidenced by Securities Certificates so specified shall be
counted for purposes of determining whether the required percentage set forth in
the second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to all the Holders of
Securities having a right to vote thereat at least 7 days and not more
than 60 days before the date of such meeting. Whenever a vote, consent or
approval of the Holders of Securities is permitted or required under this
Declaration or the rules of any stock exchange on which the Preferred
Securities are listed or admitted for trading, such vote, consent or
approval may be given at a meeting of the Holders of Securities. Any
action that may be taken at a meeting of the Holders of Securities may be
taken without a meeting if a consent in writing setting forth the action
so taken is signed by the Holders of Securities owning not less than the
minimum amount of Securities in liquidation amount that would be necessary
to authorize or take such action at a meeting at which all Holders of
Securities having a right to vote thereon were present and voting. Prompt
notice of the taking of action without a meeting shall be given to the
Holders of Securities entitled to vote who have not consented in writing.
The Regular Trustees may specify that any written ballot submitted to the
Security Holder for the purpose of taking any action without a meeting
shall be returned to the Trust within the time specified by the Regular
Trustees;
(ii) each Holder of a Security may authorize any Person to act for
it by proxy on all matters in which a Holder of Securities is entitled to
participate, including waiving notice of any meeting, or voting or
participating at a meeting. No proxy shall be valid after the expiration
of 11 months from the date thereof unless otherwise provided in the proxy.
Every proxy shall be revocable at the pleasure of the Holder of Securities
executing it. Except as otherwise provided herein, all matters relating to
the
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giving, voting or validity of proxies shall be governed by the General
Corporation Law of the State of Delaware relating to proxies, and judicial
interpretations thereunder, as if the Trust were a Delaware corporation
and the Holders of the Securities were stockholders of a Delaware
corporation;
(iii) each meeting of the Holders of the Securities shall be
conducted by the Regular Trustees or by such other Person that the Regular
Trustees may designate; and
(iv) unless the Business Trust Act, this Declaration, the terms of
the Securities, the Trust Indenture Act or the listing rules of any stock
exchange on which the Preferred Securities are then listed or trading,
otherwise provides, the Regular Trustees, in their sole discretion, shall
establish all other provisions relating to meetings of Holders of
Securities, including notice of the time, place or purpose of any meeting
at which any matter is to be voted on by any Holders of Securities, 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.
ARTICLE XIII.
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1. Representations and Warranties of Institutional
Trustee. The Trustee that acts as initial Institutional Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Institutional Trustee represents and warrants to the Trust and
the Sponsor at the time of the Successor Institutional Trustee's acceptance of
its appointment as Institutional Trustee that:
(a)(i) in the case of the initial Institutional Trustee, it is a
Delaware banking corporation with trust powers, duly organized, validly
existing and in good standing under the laws of the State of Delaware,
with trust power and authority to execute and deliver, and to carry out
and perform its obligations under the terms of, the Declaration and (ii)
in the case of any Successor Institutional Trustee, it satisfies the
requirements of Section 5.3(a) herein;
(b) the execution, delivery and performance by the Institutional
Trustee of the Declaration has been duly authorized by all necessary
corporate action on the part of the Institutional Trustee. The Declaration
has been duly executed and delivered by the
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Institutional Trustee, and it constitutes a legal, valid and binding
obligation of the Institutional Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws affecting
creditors' rights generally and to general principles of equity and the
discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law);
(c) the execution, delivery and performance of the Declaration by
the Institutional Trustee does not conflict with or constitute a breach of
the Articles of Organization or By-laws of the Institutional Trustee; and
(d) no consent, approval or authorization of, or registration with
or notice to, any State or Federal banking authority is required for the
execution, delivery or performance by the Institutional Trustee, of the
Declaration.
SECTION 13.2. Representations and Warranties of Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents and warrants to the
Trust and to the Sponsor at the date of this Declaration, and each Successor
Delaware Trustee represents and warrants to the Trust and the Sponsor at the
time of the Successor Delaware Trustee's acceptance of its appointment as
Delaware Trustee that:
(a)(i) in the case of the initial Delaware Trustee, it is a Delaware
banking corporation with trust powers, duly organized, validly existing
and in good standing under the laws of the State of Delaware, with trust
power and authority to execute and deliver, and to carry out and perform
its obligations under the terms of, the Declaration and (ii) in the case
of any Successor Delaware Trustee, it satisfies the requirements of
Section 5.2 herein;
(b) the Delaware Trustee has been authorized to perform its
obligations under the Certificate of Trust and the Declaration. The
Declaration under Delaware law constitutes a legal, valid and binding
obligation of the Delaware Trustee, enforceable against it in accordance
with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the
court (regardless of whether the enforcement of such remedies is
considered in a proceeding in equity or at law);
(c) no consent, approval or authorization of, or registration with
or notice to, any State or Federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee, of the
Declaration; and
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(d) the Delaware Trustee is a natural person who is a resident of
the State of Delaware or, if not a natural person, an entity which has its
principal place of business in the State of Delaware.
ARTICLE XIV.
MISCELLANEOUS
SECTION 14.1. Notices. All notices provided for in this Declaration
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by registered or certified mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at the
Trust's mailing address set forth below (or such other address as the
Trust may give notice of to the Holders of the Securities):
PLC Capital Trust IV
c/o Protective Life Corporation
2801 Highway 280 South
Birmingham, Alabama 35223
(b) if given to the Delaware Trustee, at the mailing address set
forth below (or such other address as Delaware Trustee may give notice of
to the Holders of the Securities):
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
(c) if given to the Institutional Trustee, at its Corporate Trust
Office to the attention of Corporate Trust Administration (or such other
address as the Institutional Trustee may give notice of to the Holders of
the Securities):
(d) if given to the Holder of the Common Securities, at the mailing
address of the Sponsor set forth below (or such other address as the
Holder of the Common Securities may give notice to the Trust):
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Protective Life Corporation
2801 Highway 280 South
Birmingham, Alabama 35223
(e) if given to any other Holder, at the address set forth on the
books and records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 14.2. Governing Law. This Declaration and the rights of the
parties hereunder shall be governed by and interpreted in accordance with the
laws of the State of Delaware and all rights and remedies shall be governed by
such laws without regard to principles of conflict of laws.
SECTION 14.3. Intention of the Parties. It is the intention of the
parties hereto that the Trust be classified for United States federal income tax
purposes as a grantor trust. The provisions of this Declaration shall be
interpreted to further this intention of the parties.
SECTION 14.4. Headings. Headings contained in this Declaration are
inserted for convenience of reference only and do not affect the interpretation
of this Declaration or any provision hereof.
SECTION 14.5. Successors and Assigns. Whenever in this Declaration
any of the parties hereto is named or referred to, the successors and assigns of
such party shall be deemed to be included, and all covenants and agreements in
this Declaration by the Sponsor and the Trustees shall bind and inure to the
benefit of their respective successors and assigns, whether or not so expressed.
SECTION 14.6. Partial Enforceability. If any provision of this
Declaration, or the application of such provision to any Person or circumstance,
shall be held invalid, the remainder of this Declaration, or the application of
such provision to persons or circumstances other than those to which it is held
invalid, shall not be affected thereby.
SECTION 14.7. Counterparts. This Declaration may contain more than
one counterpart of the signature page and this Declaration may be executed by
the affixing of the
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signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
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IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
------------------------------------
Richard J. Bielen
Trustee
------------------------------------
Jerry W. DeFoor
Trustee
------------------------------------
WILMINGTON TRUST COMPANY
Trustee
By:
---------------------------------
Name:
Title:
PROTECTIVE LIFE CORPORATION
as Sponsor
By:
---------------------------------
Name:
Title:
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ANNEX I
TERMS OF
___% TRUST ORIGINATED PREFERRED SECURITIES
___% TRUST ORIGINATED COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration of
Trust, dated as of __________, 199_ (as amended from time to time, the
"Declaration"), the designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Preferred Securities and the Common
Securities are set out below (each capitalized term used but not defined herein
has the meaning set forth in the Declaration or, if not defined in such
Declaration, as defined in the Prospectus referred to below):
1. Designation and Number. (a) Preferred Securities. _________ Preferred
Securities of the Trust with an aggregate liquidation amount with respect to the
assets of the Trust of ____________________ dollars ($__________) and a
liquidation amount with respect to the assets of the Trust of $25 per preferred
security, are hereby designated for the purposes of identification only as "___%
Trust Originated Preferred Securities(SM) ('TOPrS'(SM))" (the "Preferred
Securities"). The Preferred Security Certificates evidencing the Preferred
Securities shall be substantially in the form of Exhibit A-1 to the Declaration,
with such changes and additions thereto or deletions therefrom as may be
required by ordinary usage, custom or practice or to conform to the rules of any
stock exchange on which the Preferred Securities are listed.
(b) Common Securities. ______ Common Securities of the Trust with an
aggregate liquidation amount with respect to the assets of the Trust of
_______________ _________________________________ dollars ($_________) and a
liquidation amount with respect to the assets of the Trust of $25 per common
security, are hereby designated for the purposes of identification only as "___%
Trust Originated Common Securities" (the "Common Securities"). The Common
Security Certificates evidencing the Common Securities shall be substantially in
the form of Exhibit A-2 to the Declaration, with such changes and additions
thereto or deletions therefrom as may be required by ordinary usage, custom or
practice.
2. Distributions. (a) Distributions payable on each Security will be
fixed at a rate per annum of ___% (the "Coupon Rate") of the stated liquidation
amount of $25 per Security, such rate being the rate of interest payable on the
Debentures to be held by the Institutional Trustee. Distributions in arrears for
more than three consecutive months will bear interest thereon compounded
quarterly at the Coupon Rate (to the extent permitted by applicable law). The
term "Distributions" as used herein includes such cash distributions and
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<PAGE>
any such interest payable unless otherwise stated. A Distribution is payable
only to the extent that payments are made in respect of the Debentures held by
the Institutional Trustee and to the extent the Institutional Trustee has funds
available therefor. The amount of Distributions payable for any period will be
computed for any full quarterly Distribution period on the basis of a 360-day
year of twelve 30-day months, and for any period shorter than a full quarterly
Distribution period for which Distributions are computed, Distributions will be
computed on the basis of the actual number of days elapsed per 90-day quarter.
(b) Distributions on the Securities will be cumulative, will
accrue from __________, 199_, and will be payable quarterly in arrears, on
March 31, June 30, September 30, and December 31 of each year, commencing on
__________, 199_, except as otherwise described below. The Debenture Issuer
has the right under the Indenture to defer payments of interest by extending
the interest payment period from time to time on the Debentures for a period
not exceeding 20 consecutive quarters (each such period, an "Extension
Period"), during which Extension Period no interest shall be due and payable
on the Debentures, provided that no Extension Period shall last beyond the
date of maturity of the Debentures. As a consequence of any such deferral,
Distributions will also be deferred. Despite any such deferral, quarterly
Distributions will continue to accrue with interest thereon (to the extent
permitted by applicable law) at the Coupon Rate compounded quarterly during
any such Extension Period. Prior to the termination of any such Extension
Period, the Debenture Issuer may further extend such Extension Period;
provided that such Extension Period together with all such previous and
further extensions thereof may not exceed 20 consecutive quarters. Upon the
termination of any Extension Period, payments of accrued Distributions will
be payable to Holders as they appeared on the books and records of the Trust
on the record date immediately preceding the end of the applicable Extension
Period. Upon the termination of any Extension Period and the payment of all
amounts then due, the Debenture Issuer may commence a new Extension Period,
subject to the above requirements.
(c) Distributions on the Securities will be payable to the Holders
thereof as they appear on the books and records of the Trust on the relevant
record dates. While the Preferred Securities remain in book-entry only form, the
relevant record dates shall be one Business Day prior to the relevant payment
dates, which payment dates shall correspond to the interest payment dates on the
Debentures. Subject to any applicable laws and regulations and the provisions of
the Declaration, each such payment in respect of the Preferred Securities will
be made as described under the heading "Description of the Preferred Securities
- -- Book-Entry Only Issuance -- The Depository Trust Company" in the Prospectus
Supplement dated __________, 199_, of the Trust included in the Registration
Statement on Form S-3 of the Sponsor and the Trust. The relevant record dates
for the Common Securities shall be the same record dates as for the Preferred
Securities. If the Preferred Securities shall cease to be in book-entry only
form, the relevant record dates for the Preferred Securities shall conform to
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the rules of any securities exchange on which the securities are listed and, if
none, shall be the March 15, June 15, September 15, December 15, as the case may
be, before the relevant payment dates, which payment dates correspond to the
interest payment dates on the Debentures. Distributions payable on any
Securities that are not punctually paid on any Distribution payment date, as a
result of the Debenture Issuer having failed to make a payment under the
Debentures, will cease to be payable to the Person in whose name such Securities
are registered on the relevant record date, and such defaulted Distribution will
instead be payable to the Person in whose name such Securities are registered on
the special record date or other specified date determined in accordance with
the Indenture. If any date on which Distributions are payable on the Securities
is not a Business Day, then payment of the Distribution payable on such date
will be made on the next succeeding day that 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.
(d) In the event that there is any money or other property held by
or for the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata (as defined herein) among the Holders of the Securities.
3. Liquidation Distribution upon Dissolution. In the event of any
voluntary or involuntary dissolution, winding-up or termination of the Trust,
the Holders of the Securities on the date of such dissolution, winding-up or
termination, as the case may be, will be entitled to receive out of the assets
of the Trust available for distribution to Holders of Securities after
satisfaction of liabilities of creditors of the Trust an amount equal to the
aggregate of the stated liquidation amount of $25 per Security plus accrued and
unpaid Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution"), unless, in connection with such dissolution,
winding-up or termination, Debentures in an aggregate principal amount equal to
the aggregate stated liquidation amount of such Securities, with an interest
rate equal to the Coupon Rate of, and bearing accrued and unpaid interest in an
amount equal to the accrued and unpaid Distributions on, such Securities, shall
be distributed on a Pro Rata basis to the Holders of the Securities in exchange
for such Securities.
If, upon any such dissolution, the Liquidation Distribution can be
paid only in part because the Trust has insufficient assets available to pay in
full the aggregate Liquidation Distribution, then the amounts payable directly
by the Trust on the Securities shall be paid on a Pro Rata basis.
4. Redemption and Distribution. The Securities are subject to
redemption in accordance herewith at any time after __________, 20__ and, in
certain circumstances, following the occurrence of a Tax Event (as defined
below).
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<PAGE>
(a) Upon the repayment of the Debentures in whole or in part,
whether at maturity or upon redemption (either at the option of the Debenture
Issuer or pursuant to a Tax Event in each case as described below), the proceeds
from such repayment or payment shall be simultaneously applied to redeem
Securities having an aggregate liquidation amount equal to the aggregate
principal amount of the Debentures so repaid or redeemed at a redemption price
of $25 per Security plus an amount equal to accrued and unpaid Distributions
thereon at the date of the redemption, payable in cash (the "Redemption Price").
Holders will be given not less than 30 nor more than 60 days' notice of any such
redemption.
(b) If fewer than all the outstanding Securities are to be so
redeemed, the Common Securities and the Preferred Securities will be redeemed
Pro Rata and the Preferred Securities to be redeemed will be redeemed as
described in Section 4(f)(ii) below.
(c) The Sponsor shall have the right at any time, upon notice to the
Regular Trustees, to elect to terminate the Trust, and upon receipt of such
notice, the Regular Trustees shall dissolve the Trust and, after satisfaction of
creditors of the Trust, cause Debentures held by the Institutional Trustee,
having an aggregate principal amount equal to the aggregate stated liquidation
amount of, with an interest rate identical to the Coupon Rate of, and accrued
and unpaid interest equal to accrued and unpaid Distributions on, and having the
same record date for payment as, the Securities, to be distributed to the
Holders of the Securities in liquidation of such Holders' interests in the
Securities within 90 days following receipt of the Sponsor's notice of election.
(d) If a Tax Event shall occur and be continuing, the Debenture
Issuer shall have the right at any time, upon not less than 30 nor more than 60
days' notice, to redeem the Debentures in whole or in part for cash within 90
days following the occurrence of such Tax Event, and, following such redemption,
Securities with an aggregate liquidation amount equal to the aggregate principal
amount of the Debentures so redeemed shall be redeemed by the Trust at the
Redemption Price on a Pro Rata basis; provided, however, that, if at the time
there is available to the Debenture Issuer or the Trust the opportunity to
eliminate, within such 90 day period, the Tax Event by taking some Ministerial
Action, the Trust or the Debenture Issuer will pursue such Ministerial Action in
lieu of redemption.
"Tax Event" means the receipt by the Debenture Issuer of an opinion
of nationally recognized independent tax counsel experienced in such matters to
the effect that, as a result of (i) any amendment to, or change (including any
announced prospective change) in, on or after the day before the date of
issuance of the Preferred Securities under the Declaration, the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein or (ii) any interpretation or application
of, or
I-4
<PAGE>
pronouncement with respect to, such laws or regulations by any legislative
body, court, governmental agency or regulatory authority, which amendment or
change is effective or which interpretation, application or pronouncement is
announced on or after the day before the date of issuance of the Preferred
Securities under the Declaration, there is more than an insubstantial
increase in the risk (x) that the Trust is, or will be within 90 days of the
date thereof, subject to United States federal income tax with respect to
income received or accrued on the Debentures and that the Trust would be
subject to United States federal income tax if the Debentures were
distributed to the holders of the Securities in liquidation of such holders'
interests in the Trust pursuant to the exercise by the Debenture Issuer of
its right to dissolve the Trust, (y) that interest payable by the Debenture
Issuer on the Debentures is not, or within 90 days of the date thereof, will
not be, deductible, in whole or in part, for United States federal income tax
purposes, even if the Debentures were distributed to the holders of the
Securities in liquidation of such holders' interests in the Trust pursuant to
the exercise by the Debenture Issuer of its right to dissolve the Trust or
(z) that the Trust is, or will be within 90 days of the date thereof, subject
to more than a de minimis amount of other taxes, duties or other governmental
charges and that the Trust would be subject to more than a de minimis amount
of taxes, duties or other governmental charges if the Debentures were
distributed to the holders of the Securities in liquidation of such holders'
interests in the Trust pursuant to the exercise by the Debenture Issuer of
its right to dissolve the Trust.
"Ministerial Action" means the filing of a form, making an election,
or pursuing some other similar reasonable measure that has no adverse effect on
the Trust, the Debenture Issuer, the Sponsor or the Holders.
After the date for any distribution of Debentures upon dissolution
of the Trust: (i) the Securities will no longer be deemed to be outstanding,
(ii) The Depository Trust Company (the "Depository") or its nominee (or any
successor Clearing Agency or its nominee), as the record Holder of the Preferred
Securities, will receive a registered global certificate or certificates
representing the Debentures to be delivered upon such distribution and (iii) any
certificates representing Securities, except for certificates representing
Preferred Securities held by the Depository or its nominee (or any successor
Clearing Agency or its nominee), will be deemed to represent beneficial
interests in the Debentures having an aggregate principal amount equal to the
aggregate stated liquidation amount of, with an interest rate identical to the
distribution rate of, and accrued and unpaid interest equal to accrued and
unpaid Distributions on such Securities until such certificates are presented to
the Debenture Issuer or its agent for transfer or reissue.
(d) The Trust may not redeem fewer than all the outstanding
Securities unless all accrued and unpaid Distributions have been paid on all
Securities for all quarterly Distribution periods terminating on or before the
date of redemption.
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<PAGE>
(e) If the Debentures are distributed to holders of the Securities,
pursuant to the terms of the Indenture, the Debenture Issuer will use its best
efforts to have the Debentures listed on the New York Stock Exchange or on such
other exchange as the Preferred Securities were listed immediately prior to the
distribution of the Debentures.
(f) "Redemption or Distribution Procedures."
(i) Notice of any redemption of, or notice of distribution of
Debentures in exchange for, the Securities (a "Redemption/Distribution Notice")
will be given by the Trust by mail to each Holder of Securities to be redeemed
or exchanged not fewer than 30 nor more than 60 days before the date fixed for
redemption or exchange thereof which, in the case of a redemption, will be the
date fixed for redemption of the Debentures. For purposes of the calculation of
the date of redemption or exchange and the dates on which notices are given
pursuant to this Section 4(f)(i), a Redemption/Distribution Notice shall be
deemed to be given on the day such notice is first mailed by first-class mail,
postage prepaid, to Holders of Securities. Each Redemption/Distribution Notice
shall be addressed to the Holders of Securities at the address of each such
Holder appearing in the books and records of the Trust. No defect in the
Redemption/Distribution Notice or in the mailing of either thereof with respect
to any Holder shall affect the validity of the redemption or exchange
proceedings with respect to any other Holder.
(ii) In the event that fewer than all the outstanding Securities are
to be redeemed, the Securities to be redeemed shall be redeemed Pro Rata from
each Holder of Securities, it being understood that, in respect of Preferred
Securities registered in the name of and held of record by the Depository or its
nominee (or any successor Clearing Agency or its nominee), the distribution of
the proceeds of such redemption will be made to each Clearing Agency Participant
(or Person on whose behalf such nominee holds such securities) in accordance
with the procedures applied by such agency or nominee.
(iii) If Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice, which notice may only be issued if the
Debentures are redeemed as set out in this Section 4 (which notice will be
irrevocable), then (A) while the Preferred Securities are in book-entry only
form, with respect to the Preferred Securities, by 12:00 noon, New York City
time, on the redemption date, provided that the Debenture Issuer has paid the
Institutional Trustee a sufficient amount of cash in connection with the related
redemption or maturity of the Debentures, the Institutional Trustee will deposit
irrevocably with the Depository or its nominee (or successor Clearing Agency or
its nominee) funds sufficient to pay the applicable Redemption Price with
respect to the Preferred Securities and will give the Depository irrevocable
instructions and authority to pay the Redemption Price to the Holders of the
Preferred Securities, and (B) with respect to Preferred Securities issued in
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<PAGE>
definitive form and Common Securities, provided that the Debenture Issuer has
paid the Institutional Trustee a sufficient amount of cash in connection with
the related redemption or maturity of the Debentures, the Institutional Trustee
will pay the relevant Redemption Price to the Holders of such Securities by
check mailed to the address of the relevant Holder appearing on the books and
records of the Trust on the redemption date. If a Redemption/Distribution Notice
shall have been given and funds deposited as required, if applicable, then
immediately prior to the close of business on the date of such deposit, or on
the redemption date, as applicable, distributions will cease to accrue and all
rights of Holders of such Securities so called for redemption will cease, except
the right of the Holders of such Securities to receive the Redemption Price, but
without interest on such Redemption Price. Neither the Regular Trustees nor the
Trust shall be required to register or cause to be registered the transfer of
any Securities that have been so called for redemption. If any date fixed for
redemption of Securities is not a Business Day, then payment of the Redemption
Price payable on such date will be made on the next succeeding day that is a
Business Day (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 each case
with the same force and effect as if made on such date fixed for redemption. If
payment of the Redemption Price in respect of any Securities is improperly
withheld or refused and not paid either by the Institutional Trustee or by the
Sponsor as guarantor pursuant to the relevant Securities Guarantee,
Distributions on such Securities will continue to accrue from the original
redemption date to the actual 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.
(iv) Redemption/Distribution Notices shall be sent by the Regular
Trustees on behalf of the Trust to (A) in respect of the Preferred Securities,
the Depository or its nominee (or any successor Clearing Agency or its nominee)
if Global Certificates have been issued or, if Definitive Preferred Security
Certificates have been issued, to the Holder thereof, and (B) in respect of the
Common Securities to the Holder thereof.
(v) Subject to the foregoing and applicable law (including, without
limitation, United States federal securities laws), provided the acquiror is not
the Holder of the Common Securities or the obligor under the Indenture, the
Sponsor or any of its subsidiaries may at any time and from time to time
purchase outstanding Preferred Securities by tender, in the open market or by
private agreement.
5. Voting Rights - Preferred Securities. (a) Except as provided under
Sections 5(b) and 7 of this Annex I and as otherwise required by law and the
Declaration, the Holders of the Preferred Securities will have no voting rights.
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(b) Subject to the requirements set forth in this paragraph, the
Holders of a Majority in liquidation amount of the Preferred Securities, voting
separately as a class may direct the time, method, and place of conducting any
proceeding for any remedy available to the Institutional Trustee, or exercising
any trust or power conferred upon the Institutional Trustee under the
Declaration, including (i) directing the time, method, place of conducting any
proceeding for any remedy available to the Debenture Trustee, or exercising any
trust or power conferred on the Debenture Trustee with respect to the
Debentures, (ii) waive any past default and its consequences that is waivable
under Section 5.7 of the Indenture, or (iii) exercise any right to rescind or
annul a declaration that the principal of all the Debentures shall be due and
payable, provided, however, that, where a consent or action under the Indenture
would require the consent or act of the Holders of greater than a majority of
the Holders in principal amount of Debentures affected thereby (a "Super
Majority"), the Institutional Trustee may only give such consent or take such
action at the written direction of the Holders of at least the proportion in
liquidation amount of the Preferred Securities which the relevant Super Majority
represents of the aggregate principal amount of the Debentures outstanding. The
Institutional Trustee shall not revoke any action previously authorized or
approved by a vote of the Holders of the Preferred Securities. Other than with
respect to directing the time, method and place of conducting any remedy
available to the Institutional Trustee or the Debenture Trustee as set forth
above, the Institutional Trustee shall not take any action in accordance with
the directions of the Holders of the Preferred Securities under this paragraph
unless the Institutional Trustee has obtained an opinion of tax counsel to the
effect that for the purposes of United States federal income tax the Trust will
not be classified as other than a grantor trust on account of such action. If a
Declaration Event of Default has occurred and is continuing and such event is
attributable to the failure of the Debenture Issuer to pay interest or principal
on the Debentures on the date such interest or principal is otherwise payable
(or in the case of redemption, on the redemption date), then a Holder of
Preferred Securities may directly institute a proceeding for enforcement of
payment to such Holder of the principal of or interest on the Debentures having
a principal amount equal to the aggregate liquidation amount of the Preferred
Securities of such Holder on or after the respective due date specified in the
Debentures. Notwithstanding any payments made to such Holder by the Debenture
Issuer in connection with such proceeding, the Debenture Issuer shall remain
obligated to pay the principal of or interest on the Debentures held by the
Trust or the Institutional Trustee, and the Debenture Issuer shall be subrogated
to the rights of the Holders of Preferred Securities with respect to payments on
the Preferred Securities to the extent of any payments made by the Debenture
Issuer to such Holder in any such proceeding. Except as provided in the second
preceding sentence, the Holders of Preferred Securities will not be able to
exercise directly any other remedy available to the holders of the Debentures.
Any approval or direction of Holders of Preferred Securities may be
given at a separate meeting of Holders of Preferred Securities convened for such
purpose, at a meeting of
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<PAGE>
all of the Holders of Securities in the Trust or pursuant to written consent.
The Regular Trustees will cause a notice of any meeting at which Holders of
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 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
consents.
No vote or consent of the Holders of the Preferred Securities will
be required for the Trust to redeem and cancel Preferred Securities or to
distribute the Debentures in accordance with the Declaration and the terms of
the Securities.
Notwithstanding that Holders of Preferred Securities are entitled to
vote or consent under any of the circumstances described above, any of the
Preferred Securities that are owned by the Sponsor or any Affiliate of the
Sponsor shall not be entitled to vote or consent and shall, for purposes of such
vote or consent, be treated as if they were not outstanding.
6. Voting Rights - Common Securities. (a) Except as provided under
Sections 6(b) and (c) of this Annex I and as otherwise required by law and the
Declaration, the Holders of the Common Securities will have no voting rights.
(b) The Holders of the Common Securities are entitled, in accordance
with Article V of the Declaration, to vote to appoint, remove or replace any
Trustee or to increase or decrease the number of Trustees.
(c) Subject to Section 2.6 of the Declaration and only after the
Event of Default with respect to the Preferred Securities has been cured,
waived, or otherwise eliminated and subject to the requirements of the second to
last sentence of this paragraph, the Holders of a Majority in liquidation amount
of the Common Securities, voting separately as a class, may direct the time,
method, and place of conducting any proceeding for any remedy available to the
Institutional Trustee, or exercising any trust or power conferred upon the
Institutional Trustee under the Declaration, including (i) directing the time,
method, place of conducting any proceeding for any remedy available to the
Debenture Trustee, or exercising any trust or power conferred on the Debenture
Trustee with respect to the Debentures, (ii) waive any past default and its
consequences that is waivable under Section 5.7 of the Indenture, or (iii)
exercise any right to rescind or annul a declaration that the principal of all
the Debentures shall be due and payable, provided that, where a consent or
action under the Indenture would require the consent or act of the Holders of
greater than a majority in principal amount of
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<PAGE>
Debentures affected thereby (a "Super Majority"), the Institutional Trustee may
only give such consent or take such action at the written direction of the
Holders of at least the proportion in liquidation amount of the Common
Securities which the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding. Pursuant to this Section 6(c),
the Institutional Trustee shall not revoke any action previously authorized or
approved by a vote of the Holders of the Preferred Securities. Other than with
respect to directing the time, method and place of conducting any remedy
available to the Institutional Trustee or the Debenture Trustee as set forth
above, the Institutional Trustee shall not take any action in accordance with
the directions of the Holders of the Common Securities under this paragraph
unless the Institutional Trustee has obtained an opinion of tax counsel to the
effect that for the purposes of United States federal income tax the Trust will
not be classified as other than a grantor trust on account of such action.
Any approval or direction of Holders of Common Securities may be
given at a separate meeting of Holders of Common Securities convened for such
purpose, at a meeting of all of the Holders of Securities in the Trust or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Common 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 Common 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 consents.
No vote or consent of the Holders of the Common Securities will be
required for the Trust to redeem and cancel Common Securities or to distribute
the Debentures in accordance with the Declaration and the terms of the
Securities.
7. Amendments to Declaration and Indenture. (a) In addition to any
requirements under Section 12.1 of the Declaration, if any proposed amendment to
the Declaration provides for, or the Regular Trustees otherwise propose to
effect, (i) any action that would adversely affect the powers, preferences or
special rights of the Securities, whether by way of amendment to the Declaration
or otherwise, or (ii) the dissolution, winding-up or termination of the Trust,
other than as described in Section 8.1 of the Declaration, then the Holders of
outstanding Securities as a class, will be entitled to vote on such amendment or
proposal (but not on any other amendment or proposal) and such amendment or
proposal shall not be effective except with the approval of the Holders of at
least a Majority in liquidation amount of the Securities, voting together as a
single class; provided, however, if any amendment or proposal referred to in
clause (i) above would adversely affect only the Preferred Securities or only
the Common Securities, then only the affected class will be
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<PAGE>
entitled to vote on such amendment or proposal and such amendment or proposal
shall not be effective except with the approval of a Majority in liquidation
amount of such class of Securities.
(b) In the event the consent of the Institutional Trustee as the
holder of the Debentures is required under the Indenture with respect to any
amendment, modification or termination of the Indenture or the Debentures, the
Institutional Trustee shall request the written direction of the Holders of the
Securities with respect to such amendment, modification or termination and shall
vote with respect to such amendment, modification or termination as directed by
a Majority in liquidation amount of the Securities voting together as a single
class; provided, however, that where a consent under the Indenture would require
the consent of the holders of greater than a majority in aggregate principal
amount of the Debentures (a "Super Majority"), the Institutional Trustee may
only give such consent at the direction of the Holders of at least the
proportion in liquidation amount of the Securities which the relevant Super
Majority represents of the aggregate principal amount of the Debentures
outstanding; provided, further, that the Institutional Trustee shall not take
any action in accordance with the directions of the Holders of the Securities
under this Section 7(b) unless the Institutional Trustee has obtained an opinion
of tax counsel to the effect that for the purposes of United States federal
income tax the Trust will not be classified as other than a grantor trust on
account of such action.
8. Pro Rata. A reference in this Annex I to any payment,
distribution or treatment as being "Pro Rata" shall mean pro rata to each Holder
of Securities according to the aggregate liquidation amount of the Securities
held by the relevant Holder in relation to the aggregate liquidation amount of
all Securities outstanding unless, in relation to a payment, an Event of Default
under the Declaration has occurred and is continuing, in which case any funds
available to make such payment shall be paid first to each Holder of the
Preferred Securities pro rata according to the aggregate liquidation amount of
Preferred Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Preferred Securities outstanding, and only after
satisfaction of all amounts owed to the Holders of the Preferred Securities, to
each Holder of Common Securities pro rata according to the aggregate liquidation
amount of Common Securities held by the relevant Holder relative to the
aggregate liquidation amount of all Common Securities outstanding.
9. Ranking. The Preferred Securities rank pari passu with, and
payment thereon shall be made Pro Rata with, the Common Securities except that,
where an Event of Default occurs and is continuing under the Indenture in
respect of the Debentures held by the Institutional Trustee, the rights of
Holders of the Common Securities to payment in respect of Distributions and
payments upon liquidation, redemption and otherwise are subordinated to the
rights to payment of the Holders of the Preferred Securities.
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10. Listing. The Regular Trustees shall use their best efforts to
cause the Preferred Securities to be listed for quotation on the New York Stock
Exchange, Inc.
11. Acceptance of Securities Guarantee and Indenture. Each Holder of
Preferred Securities and Common Securities, by the acceptance thereof, agrees to
the provisions of the Preferred Securities Guarantee and the Common Securities
Guarantee, respectively, including the subordination provisions therein, and to
the provisions of the Indenture.
12. No Preemptive Rights. The Holders of the Securities shall have
no preemptive rights to subscribe for any additional securities.
13. Miscellaneous. The foregoing terms set forth in this Annex I
constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the Preferred
Securities Guarantee or the Common Securities Guarantee (as may be appropriate),
and the Indenture to any Holder without charge on written request to the Sponsor
at its principal place of business.
I-12
<PAGE>
EXHIBIT A-1
FORM OF PREFERRED SECURITY CERTIFICATE
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT -
This Preferred Security is a Global Certificate within the meaning of the
Declaration hereinafter referred to and is registered in the name of The
Depository Trust Company (the "Depositary") or a nominee of the Depositary. This
Preferred Security is exchangeable for Preferred Securities registered in the
name of a person other than the Depositary or its nominee only in the limited
circumstances described in the Declaration and no transfer of this Preferred
Security (other than a transfer of this Preferred Security as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary) may be registered except in
limited circumstances.
Unless this Preferred Security is presented by an authorized
representative of The Depository Trust Company, a New York Corporation ("DTC")
to the Trust or its agent for registration of transfer, exchange or payment, and
any Preferred Security issued is registered in the name of Cede & Co. or such
other name as requested by an authorized representative of DTC (and any payment
hereon is made to Cede & Co.), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much as the registered
owner hereof, Cede & Co., has an interest herein.]
Certificate Number:
Number of Preferred Securities: _________
CUSIP NO.: _________
Certificate Evidencing Preferred Securities
of
PLC CAPITAL TRUST IV
__% Trust Originated Preferred Securities(SM) ("TOPrS"(SM))
(liquidation amount $25 per Preferred Security)
PLC CAPITAL TRUST IV, a statutory business trust formed under the
laws of the State of Delaware (the "Trust"), hereby certifies that ____________
(the "Holder") is the
A1-1
<PAGE>
registered owner of preferred securities of the Trust representing undivided
beneficial interests in the assets of the Trust designated the ___% Trust
Originated Preferred Securities(SM) (liquidation amount $25 per Preferred
Security) (the "Preferred Securities"). The Preferred Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer. The designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Preferred Securities
represented hereby are issued and shall in all respects be subject to the
provisions of the Amended and Restated Declaration of Trust of the Trust dated
as of __________, 199_, as the same may be amended from time to time (the
"Declaration"), including the designation of the terms of the Preferred
Securities as set forth in Annex I to the Declaration. Capitalized terms used
herein but not defined shall have the meaning given them in the Declaration. The
Holder is entitled to the benefits of the Preferred Securities Guarantee to the
extent provided therein. The Sponsor will provide a copy of the Declaration, the
Preferred Securities Guarantee and the Indenture to the Holder without charge
upon written request to the Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Preferred Securities
as evidence of indirect beneficial ownership in the Debentures.
Distributions payable on each Preferred Security will be fixed at a
rate per annum of ___% (the "Coupon Rate") of the stated liquidation amount of
$25 per Preferred Security, such rate being the rate of interest payable on the
Debentures to be held by the Institutional Trustee. Distributions in arrears for
more than one quarter will bear interest thereon compounded quarterly at the
Coupon Rate (to the extent permitted by applicable law). The term
"Distributions" as used herein includes such cash distributions and any such
interest payable unless otherwise stated. A Distribution is payable only to the
extent that payments are made in respect of the Debentures held by the
Institutional Trustee and to the extent the Institutional Trustee has funds
available therefor. The amount of Distributions payable for any period will be
computed for any full quarterly Distribution period on the basis of a 360-day
year of twelve 30-day months, and for any period shorter than a full quarterly
Distribution period for which Distributions are computed, Distributions will be
computed on the basis of the actual number of days elapsed per 90-day quarter.
Except as otherwise described below, Distributions on the Preferred
Securities will be cumulative, will accrue from the date of original issuance
and will be payable quarterly in arrears, on March 31, June 30, September 30 and
December 31 of each year, commencing
A1-2
<PAGE>
on __________, 199_, to Holders of record one (1) Business Day prior to such
payment dates, which payment dates shall correspond to the interest payment
dates on the Debentures; provided however, that if the Preferred Securities are
not then in book-entry only form, such Distributions shall be paid to the
Holders of record on the March 15, June 15, September 15 or December 15, as the
case may be, prior to such payment dates. The Debenture Issuer has the right
under the Indenture to defer payments of interest by extending the interest
payment period from time to time on the Debentures for a period not exceeding 20
consecutive quarters (each an "Extension Period") and, as a consequence of such
deferral, Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accrue with interest thereon (to the extent
permitted by applicable law) at the Coupon Rate compounded quarterly during any
such Extension Period. Prior to the termination of any such Extension Period,
the Debenture Issuer may further extend such Extension Period; provided that
such Extension Period together with all such previous and further extensions
thereof may not exceed 20 consecutive quarters. Payments of accrued
Distributions will be payable to Holders as they appear on the books and records
of the Trust on the record date immediately preceding the end of the Extension
Period. Upon the termination of any Extension Period and the payment of all
amounts then due, the Debenture Issuer may commence a new Extension Period,
subject to the above requirements.
The Preferred Securities shall be redeemable as provided in the
Declaration.
A1-3
<PAGE>
IN WITNESS WHEREOF, the Trust has executed this certificate this
_____ day of __________, 199__.
PLC CAPITAL TRUST IV
By:
--------------------------------------
Name:
Title:
A1-4
<PAGE>
-------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security Certificate to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints_______________________________________________________
_______________________________________________________________________________
___________________________________________________________________agent to
transfer this Preferred Security Certificate on the books of the Trust. The
agent may substitute another to act for him or her.
Date:___________
Signature:______
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
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<PAGE>
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
The Common Securities may only be transferred by the Debenture
Issuer and any Related Party to the Debenture Issuer or a Related Party of the
Debenture Issuer; provided that, any such transfer is subject to the condition
precedent that the transferor obtain the written opinion of nationally
recognized independent counsel experienced in such matters that such transfer
would not cause more than an insubstantial risk that:
(i) the Trust would not be classified for United States federal
income tax purposes as a grantor Trust; and
(ii) the Trust would be an Investment Company or the transferee
would become an Investment Company.
Certificate Number
Number of Common Securities
Certificate Evidencing Common Securities
of
PLC CAPITAL TRUST IV
___% Trust Originated Common Securities
(liquidation amount $25 per Common Security)
PLC CAPITAL TRUST IV, a statutory business trust formed under the
laws of the State of Delaware (the "Trust"), hereby certifies that __________
(the "Holder") is the registered owner of common securities of the Trust
representing undivided beneficial interests in the assets of the Trust
designated the ___% Trust Originated Common Securities (liquidation amount $25
per Common Security) (the "Common Securities"). The Common Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer. The designation, rights, privileges, restrictions,
preferences and other terms and
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<PAGE>
provisions of the Common Securities represented hereby are issued and shall in
all respects be subject to the provisions of the Amended and Restated
Declaration of Trust of the Trust dated as of __________, 199_, as the same may
be amended from time to time (the "Declaration"), including the designation of
the terms of the Common Securities as set forth in Annex I to the Declaration.
Capitalized terms used herein but not defined shall have the meaning given them
in the Declaration. The Holder is entitled to the benefits of the Common
Securities Guarantee to the extent provided therein. The Sponsor will provide a
copy of the Declaration, the Common Securities Guarantee and the Indenture to a
Holder without charge upon written request to the Sponsor at its principal place
of business.
Upon receipt of this certificate, the Sponsor is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Common Securities as
evidence of indirect beneficial ownership in the Debentures.
Distributions payable on each Common Security will be fixed at a
rate per annum of ___% (the "Coupon Rate") of the stated liquidation amount of
$25 per Common Security, such rate being the rate of interest payable on the
Debentures to be held by the Institutional Trustee. Distributions in arrears for
more than one quarter will bear interest thereon compounded quarterly at the
Coupon Rate (to the extent permitted by applicable law). The term
"Distributions" as used herein includes such cash distributions and any such
interest payable unless otherwise stated. A Distribution is payable only to the
extent that payments are made in respect of the Debentures held by the
Institutional Trustee and to the extent the Institutional Trustee has funds
available therefor. The amount of Distributions payable for any period will be
computed for any full quarterly Distribution period on the basis of a 360-day
year of twelve 30-day months, and for any period shorter than a full quarterly
Distribution period for which Distributions are computed, Distributions will be
computed on the basis of the actual number of days elapsed per 90-day quarter.
Except as otherwise described below, Distributions on the Common
Securities will be cumulative, will accrue from the date of original issuance
and will be payable quarterly in arrears, on March 31, June 30, September 30 and
December 31 of each year, commencing on __________, 199_, to Holders of record
one (1) Business Day prior to such payment dates, which payment dates shall
correspond to the interest payment dates on the Debentures; provided, however,
that if the Preferred Securities are not then in book-entry only form, such
Distributions shall be paid to the Holders of record on the March 15, June 15,
September 15 or December 15, as the case may be, prior to such payment dates.
The Debenture Issuer has the right under the Indenture to defer payments of
interest by extending the interest payment
A2-2
<PAGE>
period from time to time on the Debentures for a period not exceeding 20
consecutive quarters (each an "Extension Period") and, as a consequence of such
deferral, Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accrue with interest thereon (to the extent
permitted by applicable law) at the Coupon Rate compounded quarterly during any
such Extension Period. Prior to the termination of any such Extension Period,
the Debenture Issuer may further extend such Extension Period; provided that
such Extension Period together with all such previous and further extensions
thereof may not exceed 20 consecutive quarters. Payments of accrued
Distributions will be payable to Holders as they appear on the books and records
of the Trust on the record date immediately preceding the end of the Extension
Period. Upon the termination of any Extension Period and the payment of all
amounts then due, the Debenture Issuer may commence a new Extension Period,
subject to the above requirements.
The Common Securities shall be redeemable as provided in the
Declaration.
A2-3
<PAGE>
IN WITNESS WHEREOF, the Trust has executed this certificate this
_____ day of __________, 199__.
PLC CAPITAL TRUST IV
By:
------------------------------------
Name:
Title:
A2-4
<PAGE>
---------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common Security
Certificate to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints________________________________________________________
________________________________________________________________________________
_________________________agent to transfer this Common Security Certificate on
the books of the Trust. The agent may substitute another to act for him or her.
Date:__________
Signature:_____
(Sign exactly as your name appears on the other side of this Common Security
Certificate)
A2-5
<PAGE>
EXHIBIT B
SPECIMEN OF DEBENTURE
B-1
<PAGE>
EXHIBIT C
PURCHASE AGREEMENT
C-1
<PAGE>
Exhibit 5(a)
Debevoise & Plimpton
875 third Avenue
New York, New York 10022
Telephone: (212) 909-6000
Facsimile: (212) 909-6836
July 8, 1997
Protective Life Corporation PLC Capital Trust III
2801 Highway 280 South c/o Protective Life Corporation
Birmingham, Alabama 35223 2801 Highway 280 South PLC
Birmingham, Alabama 35223
PLC Capital Trust II
c/o Protective Life Corporation PLC Capital Trust IV
2801 Highway 280 South c/o Protective Life Corporation
Birmingham, Alabama 35223 2801 Highway 280 South
Birmingham, Alabama 35223
Protective Life Corporation
PLC Capital Trust II
PLC Capital Trust III
PLC Capital Trust IV
Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as special counsel to Protective Life Corporation, a
Delaware corporation ("Protective Life"), and PLC Capital Trust II, PLC Capital
Trust III and PLC Capital Trust IV, each a statutory business trust organized
under the laws of the State of Delaware (each, a "PLC Capital Trust"), in
connection with the preparation and filing with the Securities and Exchange
Commission (the
<PAGE>
Protective Life Corporation 2 July 8, 1997
PLC Capital Trust II
PLC Capital Trust III
PLC Capital Trust IV
"Commission") under the Securities Act of 1933, as amended (the "1933 Act"),
of a Registration Statement on Form S-3 (the "Registration Statement"),
including a preliminary prospectus (the "Base Prospectus") and preliminary
prospectus supplement (the "preliminary prospectus supplement", and together
with the Base Prospectus, the "Prospectus") relating to the public offering
of up to $200,000,000 in aggregate principal amount of (i) debt securities of
Protective Life, which may either be senior debt securities (the "Senior Debt
Securities") to be issued pursuant to a Senior Indenture (the "Senior
Indenture") between Protective Life and The Bank of New York, as trustee (the
"Senior Trustee") or subordinated debt securities ("Subordinated Debt
Securities") to be issued pursuant to a Subordinated Indenture (the
"Subordinated Indenture") between Protective Life and AmSouth Bank (as
successor by merger to AmSouth Bank of Alabama, successor by conversion of
charter to AmSouth Bank N.A.), as trustee (the "Subordinated Trustee"), (ii)
shares of preferred stock of Protective Life, par value $1.00 per share (the
"Preferred Stock"), (iii) shares of common stock of Protective Life, par
value $0.50 per share (the "Common Stock"), (iv) stock purchase contracts of
Protective Life (the "Stock Purchase Contracts"), (v) stock purchase units of
Protective Life (the "Stock Purchase Units"), each representing ownership of
a Stock Purchase Contract and Debt Securities or Preferred Securities (as
defined below) or debt obligations of third parties, and/or (vi) preferred
securities representing preferred undivided beneficial interests in the
assets of the PLC Capital Trusts (the "Preferred Securities"). The proceeds
of an offering of Preferred Securities by a PLC Capital Trust (together with
the proceeds from the issuance of common interests in such PLC Capital Trust)
will be loaned by such PLC Capital Trust to Protective Life and such
<PAGE>
Protective Life Corporation 3 July 8, 1997
PLC Capital Trust II
PLC Capital Trust III
PLC Capital Trust IV
loan will be evidenced by Subordinated Debt Securities, to be issued pursuant to
supplemental indentures to the Subordinated Indenture. In addition, certain
payment obligations of the respective PLC Capital Trusts with respect to the
Preferred Securities of such PLC Capital Trust will be guaranteed (on a
subordinated basis) by Protective Life pursuant to a Preferred Securities
Guarantee (each, a "Guarantee", and collectively, the "Guarantees") to be
executed by Protective Life for the benefit of holders of Preferred Securities
of such PLC Capital Trust.
In so acting, we have examined and relied upon the originals, or
copies certified or otherwise identified to our satisfaction, of such records,
documents, certificates and other instruments as in our judgment are necessary
or appropriate to enable us to render the opinion expressed below.
Based upon the foregoing, we are of the following opinion:
1. Protective Life is validly existing as a corporation in good
standing under the laws of the State of Delaware.
2. When (i) the issuance, execution and delivery of (a) supplemental
indentures ("Senior Supplemental Indentures") to the Senior Indenture and (b)
the Senior Debt Securities have been duly authorized by all necessary corporate
action of Protective Life and (ii) a Senior Supplemental Indenture has been duly
executed and delivered by Protective Life and the Senior Trustee and Senior Debt
Securities have been duly executed, authenticated, issued, delivered and paid
for as contemplated by the Registration
<PAGE>
Protective Life Corporation 4 July 8, 1997
PLC Capital Trust II
PLC Capital Trust III
PLC Capital Trust IV
Statement, the Base Prospectus and any prospectus supplement relating thereto
and in accordance with the Senior Indenture and such Senior Supplemental
Indenture, assuming the terms of such Senior Debt Securities are in compliance
with then applicable law, the Senior Debt Securities will be validly issued and
will constitute valid and binding obligations of Protective Life enforceable
against Protective Life in accordance with their terms, except as may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
of general applicability relating to or affecting the rights of creditors and to
general principles of equity (whether considered in a proceeding at law or in
equity).
3. When (i) the issuance, execution and delivery of (a)
supplemental indentures ("Subordinated Supplemental Indentures") to the
Subordinated Indenture and (b) Subordinated Debt Securities have been duly
authorized by all necessary corporate action of Protective Life, and (ii) a
Subordinated Supplemental Indenture has been duly executed and delivered by
Protective Life and the Subordinated Trustee and the Subordinated Debt
Securities have been duly executed, authenticated, issued, delivered and paid
for as contemplated by the Registration Statement, the Base Prospectus and
any prospectus supplement relating thereto and in accordance with the
Subordinated Indenture and such Subordinated Supplemental Indenture, assuming
the terms of such Subordinated Debt Securities are in compliance with then
applicable law, the Subordinated Debt Securities will be validly issued and
will constitute valid and binding obligations of Protective Life enforceable
against Protective Life in accordance with their terms, except as may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws of general applicability relating to or affecting the rights of
<PAGE>
Protective Life Corporation 5 July 8, 1997
PLC Capital Trust II
PLC Capital Trust III
PLC Capital Trust IV
creditors and to general principles of equity (whether considered in a
proceeding at law or in equity).
4. When (i) the terms of the Preferred Stock and of its issuance
and sale have been duly established in conformity with Protective Life's
Restated Certificate of Incorporation, as amended, so as not to violate any
applicable law or result in a default under or breach of any agreement or
instrument binding upon Protective Life and so as to comply with any requirement
or restriction imposed by any court or governmental body having jurisdiction
over Protective Life, and authorized by all necessary corporate action of
Protective Life, (ii) a Certificate of Designation fixing and determining the
terms of the Preferred Stock has been filed with the Secretary of State of the
State of Delaware and (iii) the Preferred Stock has been duly issued and sold as
contemplated by the Registration Statement, the Base Prospectus and any
prospectus supplement relating thereto, against payment of the consideration
fixed therefor by the Board of Directors or a duly authorized committee thereof,
the Preferred Stock will be validly issued, fully paid and nonassessable.
5. When (i) the terms of the issuance and sale of the Common Stock
shall have been duly authorized by all necessary corporate action of Protective
Life and (ii) the shares of Common Stock shall have been issued and sold as
contemplated by the Registration Statement, the Base Prospectus and any
prospectus supplement relating to the Common Stock, against payment of the
consideration fixed therefor by the Board of Directors of Protective Life or a
duly authorized committee thereof, and if issued pursuant to Stock Purchase
Contracts, as contemplated by the terms thereof and of the agreements relating
thereto, assuming
<PAGE>
Protective Life Corporation 6 July 8, 1997
PLC Capital Trust II
PLC Capital Trust III
PLC Capital Trust IV
that Protective Life has reserved for issuance the requisite number of shares of
Common Stock, the Common Stock will be duly authorized, validly issued, fully
paid and nonassessable.
6. When (i) the issuance, execution and delivery by Protective Life
of any of the Stock Purchase Contracts and the Stock Purchase Units shall have
been duly authorized by all necessary corporate action of Protective Life, (ii)
the agreements relating thereto shall have been duly executed and delivered by
the parties thereto, (iii) the Stock Purchase Contracts and the Stock Purchase
Units shall have been duly executed and delivered by Protective Life and any
other necessary signatories thereto and sold as contemplated by the Registration
Statement, the Base Prospectus and any prospectus supplement relating thereto,
against payment of the consideration fixed therefor by the Board of Directors or
a duly authorized committee thereof, assuming that the terms of such Stock
Purchase Contracts and Stock Purchase Units are in compliance with then
applicable law, the Stock Purchase Contracts and the Stock Purchase Units will
be validly issued and will constitute valid and binding obligations of
Protective Life enforceable against Protective Life in accordance with their
terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws of general applicability relating to
or affecting the rights of creditors and to general principles of equity
(whether considered in a proceeding at law or in equity).
7. When (i) the execution and delivery of any Guarantee shall have
been duly authorized by all necessary corporate action of Protective Life, (ii)
such Guarantee shall have been duly executed and delivered by Protective
<PAGE>
Protective Life Corporation 7 July 8, 1997
PLC Capital Trust II
PLC Capital Trust III
PLC Capital Trust IV
Life, (iii) the Preferred Securities to which such Guarantee relates have
been duly issued and sold and the purchase price therefor has been received
by the respective PLC Capital Trust and (iii) the Guarantee shall have been
qualified under the Trust Indenture Act of 1939, as amended, such Guarantee
will constitute a valid and legally binding obligation of Protective Life,
enforceable against Protective Life in accordance with its terms, except as
may be limited by applicable bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting the rights of
creditors generally and to general principles of equity (whether considered
in a proceeding in equity or at law).
Our opinion expressed above is limited to the laws of the State of New
York, the Delaware General Corporation Law, and the federal laws of the United
States of America.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the use of our name under the caption "Legal
Matters" in the Prospectus. In giving such consent, we do not thereby concede
that we are within the category of persons whose consent is required under
Section 7 of the 1933 Act or the Rules and Regulations of the Commission
thereunder.
Very truly yours,
/s/ Debevoise & Plimpton
<PAGE>
EXHIBIT 5(b)
Richards, Layton & Finger
One Rodney Square
P.O. Box 551
Wilmington, Delaware 19899
(302) 658-6541
Fax (302) 658-6549
July 8, 1997
PLC Capital Trust II
PLC Capital Trust III
PLC Capital Trust IV
c/o Protective Life Corporation
2801 Highway 280 South
Birmingham, Alabama 35223
Re: PLC Capital Trust II, PLC Capital Trust III and PLC Capital Trust IV
Ladies and Gentlemen:
We have acted as special Delaware counsel for Protective Life
Corporation, a Delaware corporation (the "Company"), PLC Capital Trust II, a
Delaware business trust ("Trust II"), PLC Capital Trust III, a Delaware
business trust ("Trust III"), and PLC Capital Trust IV, a Delaware business
trust ("Trust IV") (Trust II, Trust III and Trust IV are hereinafter
collectively referred to as the "Trusts" and sometimes hereinafter
individually referred to as a "Trust"), in connection with the matters set
forth herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our examination
of documents has been limited to the examination of originals or copies of the
following:
(a) The Certificate of Trust of Trust II, as filed with the office of the
Secretary of State of the State of Delaware (the "Secretary of State") on
July 1, 1997;
(b) The Certificate of Trust of Trust III, as filed with the Secretary of
State on July 1, 1997;
<PAGE>
PLC Capital Trust II
PLC Capital Trust III
PLC Capital Trust IV
July 8, 1997
Page 2
(c) The Certificate of Trust of Trust IV, as filed with the Secretary of
State on July 1, 1997;
(d) The Declaration of Trust of Trust II, dated as of July 1, 1997 among
the Company and the trustees of Trust II named therein;
(e) The Declaration of Trust of Trust III, dated as of July 1, 1997 among
the Company and the trustees of Trust III named therein;
(f) The Declaration of Trust of Trust IV, dated as of July 1, 1997 among
the Company and the trustees of Trust IV named therein;
(g) The Registration Statement (the "Registration Statement") on Form S-3,
including a preliminary prospectus and prospectus supplement with respect to
the Trusts (the "Prospectus"), relating to the Preferred Securities of the
Trusts representing preferred undivided beneficial interests in the assets of
the Trusts (each, a "Preferred Security" and collectively, the "Preferred
Securities"), filed by the Company and the Trusts with the Securities and
Exchange Commission on July 8, 1997;
(h) A form of Amended and Restated Declaration of Trust for each of the
Trusts, to be entered into between the Company, the trustees of the Trust named
therein, and the holders, from time to time, of the undivided beneficial
interests in the assets of such Trust (including the exhibits and Annex I
thereto) (collectively, the "Declarations" and individually, a "Declaration"),
attached as an exhibit to the Registration Statement; and
(i) A Certificate of Good Standing for each of the Trusts, dated
July 3, 1997, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are used
as defined in the Declarations.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (i) above. In particular,
we have not reviewed any document (other than the documents listed in paragraphs
(a) through (i) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our own
but rather have relied solely upon the foregoing documents, the statements and
information set forth
<PAGE>
PLC Capital Trust II
PLC Capital Trust III
PLC Capita! Trust IV
July 8, 1997
Page 3
therein and the additional matters recited or assumed herein, all of which we
have assumed to be true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that each of the
Declarations will constitute the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the applicable Trust, and that the Declarations and
the Certificates of Trust will be in full force and effect and will not be
amended, (ii) except to the extent provided in paragraph 1 below, the due
organization or due formation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its organization or formation, (iii) the legal capacity
of natural persons who are parties to the documents examined by us, (iv) that
each of the parties to the documents examined by us has the power and authority
to execute and deliver, and to perform its obligations under, such documents,
(v) the due authorization, execution and delivery by all parties thereto of all
documents examined by us, (vi) the receipt by each Person to whom a Preferred
Security is to be issued by the Trusts (collectively, the "Preferred Security
Holders") of a Preferred Security Certificate for such Preferred Security and
the payment for such Preferred Security, in accordance with the Declarations and
the Registration Statement, and (vii) that the Preferred Securities are issued
and sold to the Preferred Security Holders in accordance with the Declarations
and the Registration Statement. We have not participated in the preparation of
the Registration Statement or the Prospectus and assume no responsibility for
their contents.
This opinion is limited to the laws of the State of Delaware (excluding
the securities laws of the State of Delaware), and we have not considered and
express no opinion on the laws of any other jurisdiction, including federal laws
and rules and regulations relating thereto. Our opinions are rendered only with
respect to Delaware laws and rules, regulations and orders thereunder which are
currently in effect.
Based upon the foregoing, and upon our examination of such questions of
law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
<PAGE>
PLC Capital Trust II
PLC Capital Trust III
PLC Capital Trust IV
July 8, 1997
Page 4
1. Each of the Trusts has been duly created and is validly existing in
good standing as a business trust under the Business Trust Act.
2. The Preferred Securities of each Trust will represent valid and,
subject to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the applicable
Trust.
3. The Preferred Security Holders, as beneficial owners of the applicable
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Declaration.
We consent to the filing of this opinion with the Securities and Exchange
Commission as an exhibit to the Registration Statement. We hereby consent to the
use of our name under the heading "Legal Matters" in the Prospectus. In giving
the foregoing consents, we do not thereby admit that we come within the category
of persons whose consent is required under Section 7 of the Securities Act of
1933, as amended, or the rules and regulations of the Securities and Exchange
Commission thereunder. Except as stated above, without our prior written
consent, this opinion may not be furnished or quoted to, or relied upon by, any
other person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger
EAM
<PAGE>
Exhibit 8
Debevoise & Plimpton
875 third Avenue
New York, New York 10022
Telephone: (212) 909-6000
Facsimile: (212) 909-6836
July 7, 1997
Protective Life Corporation
2801 Highway 280 South
Birmingham, Alabama 35202
PLC Capital Trust II
c/o Protective Life Corporation
2801 Highway 280 South
Birmingham, Alabama 35202
Protective Life Corporation
PLC Capital Trust II
Registration Statement on Form S-3
----------------------------------
Ladies and Gentlemen:
We have acted as special tax counsel to Protective Life Corporation, a
Delaware corporation ("Protective Life"), and PLC Capital Trust II, PLC Capital
TrustIII and PLC Capital TrustIV, each a statutory business trust organized
under the laws of Delaware (each a "PLC Capital Trust"), in connection with the
preparation and filing with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "1933 Act"), of
a Registration Statement on Form S-3 under the 1933 Act, as amended (the
"Registration Statement"), relating to the public offering of up to $200,000,000
in the aggregate of (i) debt securities of Protective Life ("Debt Securities"),
(ii) preferred stock of Protective Life, (iii) common stock of Protective Life,
(iv) stock purchase contracts of Protective Life ("Stock Purchase Contracts"),
(v) stock purchase units, each representing ownership of a Stock Purchase
Contract and Debt Securities or Preferred Securities or debt obligations of
third parties, and/or (vi) preferred securities representing preferred undivided
beneficial interests in the assets of the respective PLC Capital Trusts
("Preferred Securities"). The proceeds of the offering of Preferred Securities
by a PLC Capital Trust (together with the proceeds from the issuance of common
interests in such PLC Capital Trust) may be loaned by such PLC Capital Trust to
Protective Life and such loan may be
<PAGE>
Protective Life Corporation
PLC Capital Trust II 2 July 7, 1997
evidenced by subordinated debt securities of Protective Life, to be issued
pursuant to supplemental indentures to the Subordinated Indenture entered into
between Protective Life and AmSouth Bank as trustee. In addition, certain
payment obligations of PLC Capital with respect to the Preferred Securities will
be guaranteed by a subordinated guarantee of Protective Life.
In so acting, we have reviewed the Certificate of Trust of PLC
CapitalII and the Declaration of Trust of PLC CapitalII, each dated as of July
1, 1997.
In connection with the issuance pursuant to the Registration Statement
of the Preferred Securities of PLC Capital TrustII, you have requested that we
render the opinion set forth below. In rendering such opinion, we have examined
and relied upon the representations and warranties as to factual matters made in
or pursuant to the documents referred to above and upon the originals, or copies
certified or otherwise identified to our satisfaction, of such records,
documents, certificates or other instruments as in our judgment are necessary or
appropriate to enable us to render the opinion expressed below. We have not,
however, undertaken any independent investigation of any factual matter set
forth in any of the foregoing. We have also assumed the due execution and
delivery of the Amended and Restated Declaration of Trust of PLC Capital Trust
II in the form of Exhibit 4(g)(g) to the Registration Statement (the "Amended
Declaration of Trust"), that the Amended Declaration of Trust is valid and
enforceable in accordance with its terms and that PLC Capital TrustII will at
all times comply with the Delaware Business Trust Act (38 Del. C. Section 3801
et seq.) and the terms of the Amended Declaration of Trust.
Subject to the foregoing and the qualifications and limitations set
forth herein, (i) it is our opinion that PLC Capital Trust II will be classified
as a grantor trust and not as an association taxable as a corporation for
federal income tax purposes and (ii) the statements set forth in the Prospectus
Supplement relating to the issuance of the Preferred Securities of PLC Capital
Trust II under the caption "Certain Federal Income Tax Considerations", to the
extent that such statements relate to matters of law or legal conclusion,
constitute the opinion of Debevoise & Plimpton.
This opinion is based on the relevant law in effect (or, in the case
of Proposed Treasury Regulations, proposed) and the relevant facts that exist as
of the date hereof. No assurance can be given that the law or facts will not
change, and we have not undertaken to advise you or any other person with
respect to any event subsequent to the date hereof.
This opinion is addressed solely to you and no other person may rely
on it, provided that we hereby consent to the filing of this opinion as an
exhibit to the Registration Statement and to the use of our name under the
caption "Certain Federal Income Tax Considerations" and "Legal Matters" in the
Prospectus Supplement. In giving such consent, we do not thereby concede that
we are within the category of persons whose consent is required under Section 7
of the 1933 Act or the Rules and Regulations of the Securities and Exchange
Commission thereunder.
<PAGE>
Protective Life Corporation
PLC Capital Trust II 3 July 7, 1997
Very truly yours,
/s/ Debevoise & Plimpton
<PAGE>
EXHIBIT 12
EXHIBIT 12
PROTECTIVE LIFE CORPORATION
(IN THOUSANDS)
<TABLE>
<CAPTION>
Three Months
Year Ended December 31, Ended March 31,
---------------------------------------------------- ------------------
1992 1993 1994 1995 1996 1996 1997
--------- --------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
COMPUTATION OF RATIO OF CONSOLIDATED
EARNINGS TO FIXED CHARGES
Income before income tax $ 59,947 $ 85,044 $106,173 $121,034 $139,741 $ 33,140 $38,768
Less pretax minority interest(1) (90) (19) 0 0 0 0 0
Add interest expense 4,806 6,338 7,766 9,589 10,063 2,709 3,581
--------- --------- -------- -------- -------- -------- -------
Earnings before interest and taxes $ 64,663 $ 91,363 $113,939 $130,623 $149,804 $ 35,849 $42,349
========= ========= ======== ======== ======== ======== =======
Earnings before interest and taxes
divided by interest expense 13.5 14.4 14.7 13.6 14.9 13.2 11.8
========= ========= ======== ======== ======== ======== =======
COMPUTATION OF RATIO OF CONSOLIDATED
EARNINGS TO COMBINED FIXED CHARGES
AND DISTRIBUTIONS ON SERIES A PREFERRED
SECURITIES(2)
Income before income tax $ 59,947 $ 85,044 $106,173 $121,034 $139,741 $ 33,140 $38,768
Less pretax minority interest(1) (90) (19) 0 0 0 0 0
Add interest expense 4,806 6,338 7,766 9,589 10,063 2,709 3,581
--------- --------- -------- -------- -------- -------- -------
Earnings before interest and taxes $ 64,663 $ 91,363 $113,939 $130,623 $149,804 $ 35,849 $42,349
========= ========= ======== ======== ======== ======== =======
Earnings before interest and taxes
divided by interest expense and
distributions on Series A Preferred
Securities(2) 13.5 14.4 10.8 9.0 10.0 9.1 8.8
========= ========= ======== ======== ======== ======== =======
COMPUTATION OF RATIO OF CONSOLIDATED
EARNINGS TO COMBINED FIXED CHARGES,
DISTRIBUTIONS OF SERIES A PREFERRED
SECURITIES(2), AND INTEREST CREDITED
ON INVESTMENT PRODUCTS
Income before income tax $ 59,947 $ 85,044 $106,173 $121,034 $139,741 $ 33,140 $38,768
Less pretax minority interest(1) (90) (19) 0 0 0 0 0
Add interest expense 4,806 6,338 7,766 9,589 10,063 2,709 3,581
Add interest credited on investment
products 173,658 220,772 260,081 286,710 280,377 69,895 41,239
--------- --------- -------- -------- -------- -------- -------
Earnings before interest and taxes $ 238,321 $ 312,135 $374,020 $417,333 $430,181 $105,744 $83,588
========= ========= ======== ======== ======== ======== =======
Earnings before interest and taxes
divided by interest expense,
distributions on Series A Preferred
Securities(2), and interest credited
on investment products 1.3 1.4 1.4 1.4 1.5 1.4 1.8
========= ========= ======== ======== ======== ======== =======
</TABLE>
- ----------
(1) Does not include distributions on Series A Preferred Securities reported as
minority interest.
(2) Distributions on Series A Preferred Securities were $2,764 in 1994, $4,950
in both 1995 and 1996 and $1,237 in both of the three month periods ended March
31, 1996 and 1997; there were no Series A Preferred Securities outstanding
during any prior period.
<PAGE>
EXHIBIT 23(a)
Consent of Independent Accountants
We consent to the incorporation by reference in the registration statement of
Protective Life Corporation on Form S-3 (File No. ) of our report, which
includes an explanatory paragraph with respect to changes in the Company's
method of accounting for stock-based employee compensation plans in 1995, dated
February 11, 1997, on our audits of the consolidated financial statements and
financial statement schedules of Protective Life Corporation and subsidiaries
(the Company) as of December 31, 1996 and 1995 and for the years ended December
31, 1996, 1995, and 1994, which report is included or incorporated by reference
in the Company's Annual Report on Form 10-K. We also consent to the reference to
our firm under the captions "Experts" and "Selected Financial Information of the
Company."
/s/ Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
Birmingham, Alabama
July 7, 1997
<PAGE>
EXHIBIT 24
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 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 (i) as a member or managing member of PLC Capital L.L.C., a limited
liability company organized under the laws of the State of Delaware and
subsidiary of the Corporation ("PLC Capital L.L.C.") or (ii) as a trustee or
sponsor of, limited or general partner in, or holder of interests in, any
trust, partnership or other entity established by the Corporation in
connection with or for the purpose of facilitating the offering or issuance
of securities (a "PLC Entity")) one or more Registration Statements on Form
S-3 of the Corporation and, if applicable, PLC Capital L.L.C. and/or any such
PLC Entity to be filed with the Securities and Exchange Commission,
Washington, D.C., under the Securities Act of 1933, as amended, any
subsequent registration statements which may be filed under Rule 462(b) and
any amendment or amendments to such registration statements (including,
without limitation, post-effective amendments), relating to the debt
securities, common stock, preferred stock, or purchase contracts of the
Corporation, the preferred limited liability company interests of PLC Capital
L.L.C. and/or interests in any such PLC Entity, and related guarantees or
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: June 4, 1997
Name Title
/s/ Drayton Nabers, Jr. Chief Executive Officer
- ---------------------------- Chairman of the Board and Director
Drayton Nabers, Jr.
<PAGE>
/s/ John D. Johns President, Chief Operating Officer
- ---------------------------- and Director
John D. Johns
/s/ Jerry W. DeFoor Vice President, Controller
- ---------------------------- and Chief Accounting Officer
Jerry W. DeFoor
/s/ William J. Rushton III Chairman Emeritus and Director
- ----------------------------
William J. Rushton III
/s/ John W. Woods Director
- ----------------------------
John W. Woods
/s/ William J. Cabaniss, Jr. Director
- ----------------------------
William J. Cabaniss, Jr.
/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
/s/ Ronald L. Kuehn, Jr. Director
- ----------------------------
Ronald L. Kuehn, Jr.
-2-
<PAGE>
/s/ Herbert A. Sklenar Director
- ----------------------------
Herbert A. Sklenar
/s/ James S. M. French Director
- ----------------------------
James S. M. French
/s/ Robert A. Yellowlees Director
- ----------------------------
Robert A. Yellowlees
-3-
<PAGE>
EXHIBIT 25(a)
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.)
2801 Highway 280 South
Birmingham, Alabama 35223
(Address of principal executive offices) (Zip code)
------------------
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 2 Rector Street, New York,
of 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. 20429
New York Clearing House Association New York, New York 10005
(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
affiliation.
None.
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 17 C.F.R.
229.10(d).
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.
-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 1st day of July, 1997.
THE BANK OF NEW YORK
By: /S/MARY LAGUMINA
-------------------------------
Name: MARY LAGUMINA
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, 1996, published in accordance with
a call made by the Federal Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 6,024,605
Interest-bearing balances .......... 808,821
Securities:
Held-to-maturity securities ........ 1,071,747
Available-for-sale securities ...... 3,105,207
Federal funds sold in domestic offices
of the bank: .......................... 4,250,941
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................31,962,915
LESS: Allowance for loan and
lease losses ..............635,084
LESS: Allocated transfer risk
reserve........................429
Loans and leases, net of unearned
income, allowance, and reserve 31,327,402
Assets held in trading accounts ...... 1,539,612
Premises and fixed assets (including
capitalized leases) ................ 692,317
Other real estate owned .............. 22,123
Investments in unconsolidated
subsidiaries and associated
companies .......................... 213,512
Customers' liability to this bank on
acceptances outstanding ............ 985,297
Intangible assets .................... 590,973
Other assets ......................... 1,487,903
-----------
Total assets ......................... $52,120,460
===========
LIABILITIES
Deposits:
In domestic offices ................ $25,929,642
Noninterest-bearing ......11,245,050
Interest-bearing .........14,684,592
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 12,852,809
Noninterest-bearing .........552,203
Interest-bearing .........12,300,606
Federal funds purchased and securities
sold under agreements to repurchase
in domestic offices of the bank and
of its Edge and Agreement subsidiaries,
and in IBFs:
Federal funds purchased ............ 1,360,877
Securities sold under agreements
to repurchase....................... 226,158
Demand notes issued to the U.S.
Treasury ........................... 204,987
Trading liabilities .................. 1,437,445
Other borrowed money:
With original maturity of one year
or less .......................... 2,312,556
With original maturity of more than
one year ......................... 20,766
Bank's liability on acceptances exe-
cuted and outstanding .............. 1,014,717
Subordinated notes and debentures .... 1,014,400
Other liabilities .................... 1,721,291
-----------
Total liabilities .................... 48,095,648
===========
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 731,319
Undivided profits and capital
reserves .......................... 2,354,095
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ 7,030
Cumulative foreign currency transla-
tion adjustments .................. ( 9,916)
-----------
Total equity capital ................ 4,024,812
-----------
Total liabilities and equity
capital ........................... $52,120,460
===========
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 |
Thomas A. Renyi | Directors
Alan R. Griffith |
-
<PAGE>
EXHIBIT 25(b)
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
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
(Exact name of trustee as specified in its charter)
<TABLE>
<S> <C>
ALABAMA 63-0935103
(State of incorporation if (I.R.S. Employer
not a U.S. national bank) Identification Number)
1900 FIFTH AVENUE NORTH 35203
BIRMINGHAM, ALABAMA (Zip Code)
(Address of principal executive offices)
</TABLE>
STEPHEN A. YODER
AMSOUTH BANK
LAW DEPARTMENT
P.O. BOX 11007
BIRMINGHAM, ALABAMA 35288
(205) 326-5319
(Name, address and telephone number of agent for service)
------------------------------
PROTECTIVE LIFE CORPORATION
(Exact name of obligor as specified in its charter)
<TABLE>
<S> <C>
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)
</TABLE>
------------------------
DEBT SECURITIES
(Title of the indenture securities)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
<TABLE>
<C> <S>
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.
STATE OF ALABAMA, SUPERINTENDENT OF BANKS, MONTGOMERY, ALABAMA 36130
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.
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 FURNISH THE FOLLOWING INFORMATION:
(A) TITLE OF THE SECURITIES OUTSTANDING UNDER EACH SUCH OTHER INDENTURE.
Protective Life Corporation 9% Subordinated Debentures Series A Due June 30, 2024
Protective Life Corporation 8 1/4% Subordinated Debentures Series B Due June 30,
2027
(B) A BRIEF STATEMENT OF THE FACTS RELIED UPON AS A BASIS FOR THE CLAIM THAT NO
CONFLICTING INTEREST WITHIN THE MEANING OF SECTION 310(B)(1) OF THE ACT ARISES AS
A RESULT OF THE TRUSTEESHIP UNDER ANY SUCH OTHER INDENTURE, INCLUDING A STATEMENT
AS TO HOW THE INDENTURE SECURITIES WILL RANK AS COMPARED WITH THE SECURITIES
ISSUED UNDER SUCH OTHER INDENTURE.
No conflicting interest exists because there is not and has not been any default
under such other indentures. The indenture securities will rank PARI PASSU with
the securities under such other indentures.
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.
</TABLE>
<PAGE>
<TABLE>
<C> <S>
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 TRUSTEE OF ANY SECURITIES OF A PERSON OWNING 50
PERCENT OF 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.
THERE HAS NOT BEEN ANY SUCH DEFAULT.
ITEM 14. AFFILIATIONS WITH THE UNDERWRITERS.
Not applicable.
ITEM 15. FOREIGN TRUSTEE.
Not applicable.
ITEM 16. LIST OF EXHIBITS.
The additional exhibits listed below are filed herewith: exhibits, if any,
identified in parentheses are on file with the Commission and are incorporated
herein by reference as exhibits hereto pursuant to Rule 7a-29 under the Trust
Indenture Act of 1939, as amended, and Rule 24 of the Commission's Rule of
Practice.
1. A copy of the articles of incorporation of the trustee as now in effect.
2. A copy of the certificate of authority of the trustee to commence business and to
exercise trust powers.
3. See Exhibit 2 to Form T-1.
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 Trust Indenture Act
of 1939, as amended.
7. A copy of the latest report of condition of the trustee as of the close of
business on march 31, 1997 published pursuant to the requirements of its
supervising or examining authority.
8. Not applicable.
9. Not applicable.
</TABLE>
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the trustee,
AmSouth Bank, a state banking corporation organized and existing under the laws
of the State of Alabama, 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 third day of
July, 1997.
AMSOUTH BANK
BY /s/ CHARLES S. NORTHEN, IV
------------------------------------------
Charles S. Northen, IV
Vice President
and Corporate Trust Officer
2
<PAGE>
Exhibit 1
ARTICLES OF INCORPORATION
AMSOUTH BANK
WHEREAS, AmSouth Bank of Alabama, AmSouth Bank of Florida, AmSouth Bank of
Tennessee and AmSouth Bank of Georgia are merging with and into AmSouth Bank of
Walker County, effective upon the consummation of such merger the Articles of
Incorporation of AmSouth Bank of Walker County are hereby amended and restated
as follows:
FIRST: The name of the Corporation is AmSouth Bank.
SECOND: The purposes, objectives and powers of the Corporation are:
(a) To be and serve as an Alabama state bank with all the power and
authority that may be exercised by an Alabama state bank.
(b) To engage in any and all activities permissible under the laws of
the State of Alabama for a corporation doing business as a bank including
without limitation all powers (including incidental powers) set forth in
Code of Alabama 1975, section 5-5A-18 as amended from time to time, it being
intended that the terms "bank" and "banking" as used in this Article SECOND
shall not restrict the Corporation from engaging in any activity permitted
by statute, rule, regulation or order of the appropriate regulatory
authority.
(c) To do all things necessary and incidental to carrying on the
business of banking and such business as is done by trust companies doing a
bank business.
(d) To buy, sell, lease, acquire, own, use and occupy real property in
any locality, in a legal manner, that may be necessary or convenient for the
performance and maintenance of said banking business.
(e) To enter into contracts with persons, firms, associations and
corporations for services of each and every kind that may be necessary or
beneficial to the welfare of said banking business.
(f) To conduct for a reasonable time any business of each and every kind
that might be necessary for it to conduct by virtue of such bank having
taken over such business as a result of a foreclosure of any mortgage or
collateral security that it might necessarily have taken over; provided,
however, that said authority shall in no event continue or be exercised
beyond such time as the Superintendent of Banks for the State of Alabama
shall fix as the termination date for the reasonable exercise of the
authority.
(g) To do each and every legal thing that may be for the betterment or
welfare of said banking business, including, without limitation, merging
with or into another entity as permitted by law.
THIRD: The authorized amount of capital stock of this Corporation shall be
10,000 shares of one class of common stock of the par value of one dollar
($1.00) each, but said capital stock may be increased or decreased from time to
time in accordance with the provisions of the laws of the State of Alabama.
FOURTH: The directors of the Corporation shall not be liable to the
Corporation or its shareholders for money damages for any action taken, or any
failure to take any action, as a director, except liability for (a) the amount
of financial benefit received by the director to which he or she was not
entitled; (b) an intentional infliction of harm on the Corporation or its
shareholders; (c) a violation of Section 10-2B-8.33 of the Code of Alabama 1975
as amended from time to time; (d) an intentional violation of criminal law; or
(e) a breach of the director's duty of loyalty to the Corporation or its
shareholders.
FIFTH: These Articles of Incorporation may be amended at any regular or
special meeting of the shareholders by the affirmative vote of the holders of
the majority of the stock of this Corporation, unless the vote of the holders of
a greater amount of stock is required by law, and in that case by the vote of
the holders of such greater amount.
1
<PAGE>
Exhibit 2
STATE OF ALABAMA
MONTGOMERY COUNTY
CERTIFICATE OF APPROVAL
WHEREAS, the undersigned has been requested to give his written approval
authorizing AMSOUTH BANK OF WALKER COUNTY, JASPER, ALABAMA, to conduct and
operate a Trust Department as set forth in the attached resolution and, whereas,
said bank is duly qualified to be authorized:
NOW, THEREFORE, I, the undersigned Wayne C. Curtis as Superintendent of
Banks of the State of Alabama, do hereby approve the action taken by the Board
of Directors of said AmSouth Bank of Walker County as set forth in the attached
resolution, and do hereby authorize said bank to operate and conduct a Trust
Department, become a trustee for any lawful purpose, be appointed and act as
executor, administrator, guardian, and/or receiver, and do any business and
exercise any powers incident to the business of trust and banking companies
doing banking business.
WITNESS my hand and seal of office this the 9th day of June, 1997.
/s/ WAYNE C. CURTIS
-------------------------
Wayne C. Curtis
Superintendent of Banks
<PAGE>
SUPERINTENDENT OF BANKS
STATE OF ALABAMA
MONTGOMERY, ALABAMA
CERTIFICATE OF APPROVAL
WHEREAS, satisfactory evidence has been presented to the Superintendent of
Banks of the State of Alabama, showing that all requisite legal actions have
been taken by AMSOUTH BANK OF WALKER COUNTY, located at JASPER, ALABAMA; AMSOUTH
BANK OF FLORIDA, located at TAMPA, FLORIDA; AMSOUTH BANK OF TENNESSEE, located
at CHATTANOOGA, TENNESSEE; AMSOUTH BANK OF GEORGIA, located at ROME, GEORGIA;
and AMSOUTH BANK OF ALABAMA, located at BIRMINGHAM, ALABAMA, in accordance with
the Alabama Interstate and International Bank Act of 1995, to merge AMSOUTH BANK
OF FLORIDA, located at TAMPA, FLORIDA; AMSOUTH BANK OF TENNESSEE, located at
CHATTANOOGA, TENNESSEE; AMSOUTH BANK OF GEORGIA, located at ROME, GEORGIA; and
AMSOUTH BANK OF ALABAMA, located at BIRMINGHAM, ALABAMA with and into AMSOUTH
BANK OF WALKER COUNTY under the title of AmSouth Bank. This merger shall not
become effective before June 25, 1997.
NOW, THEREFORE, IT IS HEREBY FOUND AND IT IS HEREBY CERTIFIED that the
merger is approved in all respects on the 9th day of June, 1997.
IN TESTIMONY WHEREOF, WITNESS my signature and the official seal of the
Superintendent of Banks on the 9th day of June, 1997.
/s/ WAYNE C. CURTIS
------------------------
Wayne C. Curtis
Superintendent of Banks
<PAGE>
Exhibit 4
June 25, 1997
AMSOUTH BANK
BYLAWS
SECTION 1.1: ANNUAL MEETING
The annual meeting of the shareholders of this Bank shall be held either
immediately following the annual meeting of shareholders of AmSouth
Bancorporation or on such date and at such time as may be fixed by resolution of
the Board of Directors, for the purpose of electing directors and for the
transaction of such other business as may come before the meeting. If the day
fixed for the annual meeting is a legal holiday in the state in which the
meeting is to be held, the meeting shall be held on the next succeeding business
day. If the election of directors shall not be held following the annual meeting
of the shareholders of AmSouth Bancorporation or on the day fixed by the Board
of Directors for any annual meeting of the shareholders, or at any adjournment
thereof, the Board of Directors shall cause the election to be held at a special
meeting of the shareholders as soon thereafter as convenient.
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 one tenth of the shares of such stock
entitled to vote at the meeting.
SECTION 1.3: PLACE OF MEETING
The place of meeting shall be the principal office of this Bank unless some
other place, either within or without the State of Alabama, is designated by the
Board of Directors.
SECTION 1.4: NOTICE OF MEETINGS
This Bank, or in the case of a special meeting called by shareholders, the
persons calling the meeting, shall notify shareholders in writing of the date,
time and place of each annual and special shareholders' meeting not less than
ten (10) nor more than sixty (60) days before the meeting date. Such notice may
be waived (before or after the holding of any such meeting) in writing by
shareholders otherwise entitled to receive such notice. If an annual or special
shareholders' meeting is adjourned to a different date, time or place, notice
need not be given of the new date, time or place if the new date, time or place
is announced at the meeting before adjournment. If a new record date for the
adjourned meeting is or must be fixed, however, notice of the adjourned meeting
must be given to persons who are shareholders as of the new record date.
SECTION 1.5: FIXING OF RECORD DATE
(a) For the purpose of determining shareholders entitled to notice of or
to vote at any meeting of shareholders 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 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
seventy (70) 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 shareholders, is to be taken.
(b) If no record date for the determination of shareholders entitled to
notice, to vote at a meeting of shareholders, or to receive payment of a
dividend, is fixed, then (i) the day before the date on which the notice is
mailed to shareholders or the date on which the resolution is adopted, as
the case may be, shall be the record date for such determination of
shareholders, or (ii) in the case of a record date for determining
shareholders entitled to demand a special meeting, the date the first
Page 1 of 12
<PAGE>
June 25, 1997
shareholder signs the demand, or (iii) in the case of a record date for
determining shareholders entitled to take action without a meeting, the date
the first shareholder signs the written consent.
SECTION 1.6: PROXIES
Shareholders may vote at any meeting of the shareholders by proxies duly
authorized in writing. Proxies for any meeting may, but need not, be limited to
that meeting alone, and any adjournment thereof, shall be dated, and shall be
filed with the records of the meeting. An appointment of a proxy is valid for
eleven (11) months unless a longer period is expressly provided in the
appointment form.
SECTION 1.7: QUORUM
Shares of the capital stock of the Bank representing a majority of the
shares entitled to vote at the meeting, 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.
SECTION 1.8: ACTION BY CONSENT WITHOUT A MEETING
Any action required or permitted to be taken at any meeting of shareholders
may be taken without a meeting if a written consent thereto is signed by all the
shareholders entitled to vote on the action and such written consent is filed
with the minutes of the proceedings of shareholders.
SECTION 2.1: BOARD OF DIRECTORS: NUMBER, VACANCIES, AND QUALIFICATIONS
(a) 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 fifteen (15)
persons, the exact number, within the limits stated, to be determined from
time to time by resolution of the shareholders at any meeting thereof;
provided, however, that no decrease shall have the effect of shortening the
term of any incumbent director. All the vacancies on the Board of Directors
occurring in the interval between annual meetings shall be filled by the
shareholders.
(b) At least fifty-one percent of the whole number of directors must be
residents of the State of Alabama and at least seventy-five percent of the
whole number of directors must be residents of the State of Alabama or of
states contiguous to it; and, all directors must own the number of shares of
the parent company of the Bank required by the law of Alabama.
(c) The qualifications and retirement policies for the members of the
Board of Directors shall be established from time to time by resolution of
the Board of Directors.
(d) Any director may resign at any time upon written notice to the Bank.
Any director or the entire Board of Directors may be removed by the
shareholders at any time with or without cause.
SECTION 2.2: ORGANIZATIONAL 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 of
Directors. 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
meeting 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 MEETINGS
A regular meeting of the Board of Directors shall be held without other
notice than this bylaw at 1:00 p.m., local time, on the third Thursday of
January, March, April, July, October, and December (unless such date shall fall
on a Bank holiday, in which event the meeting shall be held on the next
succeeding business
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day and at the same hour or at such other hour as may be designated by the Board
of Directors). Regular meetings of the Board of Directors shall be held at the
principal office of this Bank or such other location as may be determined by the
Board of Directors or as permitted by law. The Board of Directors may provide,
by resolution, the time and place, either within or without the State of
Alabama, for the holding of additional or substitute regular meetings without
other notice than such resolution.
SECTION 2.4: SPECIAL MEETINGS
Special meetings of the Board of Directors may be called by or at the
request of the Chief Executive Officer or any three (3) directors. Special
meetings of the Board of Directors may be held at the principal office of this
Bank or at another place, either within or without the State of Alabama.
SECTION 2.5: PARTICIPATION BY CONFERENCE TELEPHONE
Members of the Board of Directors, or of any committee thereof, may
participate in any meeting of the Board of Directors or of any such committee by
means of a conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other; and
participation in a meeting in such manner shall constitute presence in person at
the meeting.
SECTION 2.6: ACTION BY CONSENT WITHOUT A MEETING
Any action required or permitted to be taken at any meeting of the Board of
Directors or of any committee thereof may be taken without a meeting, if a
written consent thereto is signed by all members of the Board of Directors or of
such committee, as the case may be, and such written consent is filed with the
minutes of proceedings of the Board of the Board of Directors or committee.
SECTION 2.7: NOTICE
At least one (1) day's notice of any special meeting of the Board of
Directors or of any meeting of a committee of the Board of Directors shall be
given to all directors or committee members, as the case may be, unless, in the
opinion of the officer or directors calling the meeting, an emergency exists
that requires less than one (1) day's notice; in that event, only such notice
need be given as such officer or directors shall direct. Any director may waive
notice of any meeting by signing a waiver in writing, before or after the date
and time stated in the notice. The attendance or participation of a director at
a meeting (i) waives notice or any defect in the notice of such meeting, except
where a director objects at the beginning of the meeting to holding the meeting
or transacting any business because the meeting is not lawfully called or
convened, and does not thereafter vote for or assent to the action taken at the
meeting, and (ii) waives objection to consideration of a particular matter at
the meeting that is not within the purposes stated in the meeting notice, unless
the director objects to considering the matter before action is taken on the
matter.
SECTION 2.8: FEES
By resolution of the Board of Directors, the directors may be paid their
expenses, if any, of attendance at each meeting of the Board of Directors or any
committee thereof and may be paid a fixed sum for attendance at each such
meeting or a stated salary as director, or both.
SECTION 2.9: QUORUM
A majority of the Board of Directors shall constitute 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.
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SECTION 3.1: COMMITTEES OF THE BOARD
The Board of Directors may, by resolution or resolutions passed by a
majority of the whole Board, designate one or more committees, which, to the
extent provided in such resolution or resolutions, shall have, and may during
intervals between the meetings of the Board of Directors exercise, all the
powers and authority of the Board of Directors in the management of the business
and affairs of this Bank and may authorize the seal of this Bank to be affixed
to all papers that may require it. Each such committee or committees shall
consist of one or more of the directors of this Bank and shall have such name or
names as may be determined from time to time by resolution or resolutions
adopted by the Board of Directors. The designation of any such committee or
committees and the delegation thereto of authority shall not operate to relieve
the Board of Directors, nor any member thereof, of any responsibility imposed
upon it, him, or her by law. The Board of Directors may by resolution designate
committees of the Board of Directors of AmSouth Bancorporation to serve as
committees of the Board of Directors of this Bank.
SECTION 3.2: LOCAL BOARDS
The Chief Executive Officer may appoint, from time to time, Local Boards of
Directors for any one or more of the cities or other geographic areas served by
the Bank. The members of Local Boards of Directors shall consist of such persons
as shall have been recommended by the senior officer for the relevant city or
other geographic area. 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 Chief Executive Officer of this Bank. The duties of Local Boards of
Directors shall be those prescribed from time to time by the Chief Executive
Officer of this Bank.
SECTION 4.1: GENERAL
(a) The officers of this Bank shall consist of a Chairman of the Board
of Directors, a President, one or more Vice Presidents (one or more of whom
may be designated by the Board of Directors as Senior Executive Vice
President, Executive Vice President, Senior Vice President, or such other
title as the Board of Directors may determine), a Chief Accounting Officer
or Controller, and a Corporate Secretary and may also include such other
officers as the Board of Directors may from time to time determine,
including, but not limited to, one or more Vice Chairmen and one or more
Assistant Secretaries. Either the Chairman of the Board or the President
shall be designated by the Board of Directors as the Chief Executive Officer
of the Bank; the President, a Vice Chairman, or one of the Vice Presidents
may be designated by the Board as the Chief Operating Officer of the Bank;
and, other officers may be designated by other titles such as "Chief
Compliance Officer," "Chief Financial Officer," "Chief Credit Officer,"
"State Banking Group Head," and the like.
(b) As used in these bylaws, the term "Executive Officers" shall include
the Chairman of the Board (if, but only if, he or she also is the Chief
Executive Officer), the President (regardless of whether he or she is the
Chief Executive Officer), any Vice Chairman of the Board, the Senior
Executive Vice Presidents, and the Executive Vice Presidents. Their "order
of authority" shall be the order designated by resolution of the Board of
Directors or if not so designated by the Board of Directors, as designated
by the Chief Executive Officer.
(c) Notwithstanding anything to the contrary contained in this Section
4.1 or elsewhere in these bylaws, no one other than the members of the
Management Committee of this Bank's parent company, AmSouth Bancorporation,
shall participate in or have the authority to participate in (otherwise than
in the capacity of a director), major policy-making functions of the Bank.
All officers of this Bank other than the members of the Management Committee
of AmSouth Bancorporation, shall be excluded from major policy-making
functions of this Bank, otherwise than in the capacity of a director of this
Bank. Executive officers of all other AmSouth Bancorporation affiliates
(other than members of the AmSouth Bancorporation Management Committee) and
of subsidiaries of this Bank
Page 4 of 12
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June 25, 1997
are excluded from participation in major policy-making functions of this
Bank. Nothing contained in these bylaws is intended to have any bearing on
whether or not an officer of this Bank is an "executive officer" of this
Bank for any purpose other than for convenient reference in these bylaws,
including, but not limited to, the purposes of determining whether or not
any officer of this Bank is an "officer" within the meaning of Section 16 of
the Securities Exchange Act of 1934 or an "executive officer" under
Regulation O of the Federal Reserve Board. Only members of the Management
Committee of AmSouth Bancorporation shall be (i) "officers" for purposes of
Section 16 of the Securities Exchange Act of 1934 (unless Section 16 or
applicable regulations require other officers with specific titles to be
subject to Section 16) or (ii) "Executive Officers" for purposes of
Regulation O of the Federal Reserve Board.
(d) Any two or more offices in this Bank may, except where prohibited by
law, be held by the same individual. In cases where an individual holds more
than one office, that person shall have the authority of all offices so held
and shall occupy the "order of authority" for the more senior of the offices
held.
(e) Except as provided below, all officers shall be elected annually by
the Board of Directors at its first meeting next following the Annual
Meeting of Shareholders of the Bank, or as soon thereafter as is
practicable; and, their terms of office shall be for one (1) year,
commencing upon election, or until their successors are elected and
qualified, whichever occurs later.
(i) The Board of Directors may, at any time and for any reason
sufficient to them, elect such other officers as they may deem desirable.
(ii) Each of the two (2) Executive Officers having the highest order
of authority has the power to elect or appoint, or delegate to any other
officer of the Bank the power to elect or appoint, all employees and all
officers holding a title at or below that of Senior Vice President.
Appointment of employees and election of persons to an office at or below
the level of Senior Vice President shall be made, unless one of the said
two (2) Executive Officers acts directly in a particular instance, as
provided in the personnel policies of the Bank, as they may from time to
time be adopted, amended, and modified. Compensation of all officers and
employees shall be fixed as provided in the personnel policies of this
Bank.
(f) Each officer shall hold his or her office until his or her successor
is elected and qualified or until his or her earlier election or removal.
Any officer may resign at any time upon written notice to the Bank. All
officers and employees serve at the will of this Bank and may be removed
from office and employment at any time, with or without cause.
(i) Only the Board of Directors or its Executive Committee can remove
from office the Chief Executive Officer, the Chairman of the Board, or
the President.
(ii) All other officers and employees may be removed from office by
either of the two (2) Executive Officers having the highest order of
authority or by any person authorized so to do by the personnel policies
of this Bank; and, unless one of the said two (2) Executive Officers acts
directly in a particular instance, removal from office or employment
shall be as provided in the personnel policies of the Bank, as they may
from time to time be adopted, amended, and modified.
(g) Vacancies among the Executive Officers may be filled by the Board of
Directors or the Executive Committee. In the event of a vacancy in any of
the offices of the Executive Officers, any of the other Executive Officers
remaining may be elected to fill the vacancy in such office for such period
as the Board of Directors may determine or until further action by the
Board.
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June 25, 1997
SECTION 4.2: CHIEF EXECUTIVE OFFICER
Subject to the direction of the Board of Directors, of the Executive
Committee, and of other committees of the Board having authority, the Chief
Executive Officer 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; shall have general charge of the Bank and of its business and affairs,
including authority over the operations of the Bank and over its employees; and,
subject to the limitations stated, shall have full power and authority to do and
perform in the name of the Bank all acts necessary or proper in his or her
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 which may be required by law.
SECTION 4.3: CHAIRMAN OF THE BOARD
The Chairman of the Board, or in his or her absence, the President or other
Executive Officers, in their order of authority, shall preside at all regular,
called, or special meetings of the Board of Directors, the Executive Committee,
and the shareholders, and at adjournments thereof.
SECTION 4.4: PRESIDENT
The President shall, subject to the direction of the Board of Directors, its
Executive Committee, and other committees of the Board of Directors having
authority (and, if he or she is not the Chief Executive Officer, then also
subject to the direction of the Chief Executive Officer), 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. The President, regardless of whether he
or she is also the Chief Executive Officer, shall have the same power to sign
for the Bank as is prescribed in these bylaws for the Chief Executive Officer.
The President 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.
SECTION 4.5: OTHER EXECUTIVE OFFICERS
Each of the Executive Officers shall (subject to the direction of the Board
of Directors and of the committees of the Board having authority and to the
direction of the Chief Executive Officer) 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 senior in the order of authority. Subject to the limitations stated
above, the authority of each Executive Officer shall include authority over the
operations of the Bank within his or her 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 or her 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 4.6: VICE PRESIDENTS
Any Vice President shall have the authority to execute in the name of the
Bank stock certificates of the Bank and transfers, conveyances, assignments,
certificates, releases, satisfactions, authentications, options, proxies,
leases, including oil, gas, and other mineral leases, agreements, including, but
not limited to agreements relating to depository accounts of the Bank, or other
instruments pertaining to investments, assets or operations of the Bank or
powers held or controlled by the Bank. 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.
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June 25, 1997
SECTION 4.7: CHIEF ACCOUNTING OFFICER OR CONTROLLER
An officer of the Bank shall be appointed "Chief Accounting Officer" or
"Controller" and shall have custody of the Bank's general accounting 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 other Executive Officer may assign him or her from time to time.
SECTION 4.8: THE SECRETARY
The Secretary shall: (a) keep the minutes of the shareholders' and of the
Board of Directors' meetings in one (1) or more books provided for that purpose;
(b) see that all notices are duly given in accordance with the provisions of
these bylaws or as required by law; (c) be custodian of the corporate records
and affix, or cause to be affixed, the seal of the Bank to all documents the
execution of which on behalf of the Bank under its seal is appropriate; (d) keep
a record of the post office address of each shareholder which shall be furnished
to the Secretary by such shareholder; (e) have general charge of the stock
transfer books of the Bank; and (f) in general perform all duties incident to
the office of Secretary and such other duties as from time to time may be
assigned to him or her by these bylaws, by the Chief Executive Officer, or by
the Board of Directors. The Secretary may, from time to time, delegate to other
officers of the Bank, including, but not limited to Assistant Secretaries, any
or all of the duties and powers of the Secretary hereunder.
SECTION 4.9: HEAD OF THE TRUST DIVISION
The officer designated by the Chief Executive Officer as the head of the
Trust Division shall have all of the powers and authority vested in any officer
described in Sections 4.10 and 4.11 of these bylaws, 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 or her discretion, to appoint all
necessary agents and attorneys; and, shall have such other duties and powers as
shall be delegated by the Chief Executive Officer, the Board of Directors,
Executive Committee, or any committee of the Board of Directors with authority
over trust matters.
SECTION 4.10: VICE PRESIDENTS ASSIGNED TO TRUST DIVISION
Each Vice President (and any officer more senior in authority) who is
assigned to the Trust Division, or who is otherwise shown on the personnel
records of the Bank as occupying a position in which he or she acts on behalf of
the Bank in a trust capacity, shall have all of the powers vested in any officer
described in Section 4.11 of these bylaws, and, in addition, is empowered to
execute all deeds, conveyances, mortgages, contracts, bonds, bills of sale,
trust or agency agreements, indentures or deeds of trust, notes, assignments,
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 Chief
Executive Officer, the Board of Directors, Executive Committee, any committee of
the Board of Directors with authority over trust matters, or by the head of the
Trust Division. Notwithstanding anything in the bylaws, no reference to a person
being assigned to the Trust Division or to a person acting in a trust capacity
shall be interpreted to mean that all actions taken by such person are
necessarily of a fiduciary nature.
SECTION 4.11: OTHER OFFICERS ASSIGNED TO TRUST DIVISION
(a) Each Officer assigned to the Trust Division, or who is otherwise
shown on the personnel records of the Bank as occupying a position in which
he or she acts on behalf of the Bank in a trust capacity, who is not also a
Vice President and any other officer of this Bank assigned to work in the
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June 25, 1997
Trust Division of this Bank, or who is otherwise shown on the personnel
records of the Bank as occupying a position in which he or she acts on
behalf of the Bank in a trust capacity, 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 fiduciary capacity,
or pertaining to or incident to the management or handling of any trust
accounts under the supervision or management of the Bank.
(b) Each officer described in Section 4.11(a) 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 as trustee
for holders of bonds or debentures. Each such officer shall also have the
authority to affix and attest the corporate seal, and perform such other
duties as may be authorized by the Chief Executive Officer, the Board of
Directors, Executive Committee, any committee of the Board of Directors with
authority over trust matters, or by the head of the Trust Division.
SECTION 4.12: EXERCISE OF AUTHORITY OF CHIEF EXECUTIVE OFFICER BY OTHER
EXECUTIVE OFFICERS
In case of the disqualification, disability, death, resignation, or removal
of the Chief Executive Officer, and until the Board of Directors has filled the
vacancy, the Executive Officers, in their order of authority, shall act as such
Chief Executive Officer and with his full authority.
SECTION 4.13: SPECIFIC POWERS OF CERTAIN OFFICERS
(a) 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 of Directors with authority in the premises, or by any of the
Executive Officers, shall have the power to receipt for all moneys due or
payable to the Bank from any source whatever, and to sign and endorse
checks, drafts, warrants, and other choses in action in the name of the Bank
and in its behalf.
(b) No officer or employee of the Bank shall have the right or authority
to make loans except in accordance with policies and limits adopted by the
Board of Directors, the Executive Committee, or the Management Committee of
AmSouth Bancorporation, or unless and until he or she has been expressly
granted such right and authority by the Chief Executive Officer, the Board
of Directors, the Executive Committee, or the Management Committee.
(c) Only such officers of the Bank as are authorized by these bylaws or
by the Board of Directors or by a policy adopted by the Board of Directors
shall 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 and 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.
(d) Any officer of the Bank shall have the authority to attest the
execution of any paper for and on behalf of the Bank and to affix the
corporate seal of the Bank to any such paper.
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.
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June 25, 1997
SECTION 4.15: FACSIMILE SIGNATURES
Signatures of officers and employees may be made by the use of stamped
facsimile signatures.
SECTION 5.1: TRANSFERS
Transfer of stock in this Bank can be made only 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 or 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, 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 of Directors 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 or she shall make an affidavit of such loss or destruction and
deliver the same to the 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.
SECTION 6.1: CORPORATE SEAL
The corporate seal of this Bank shall be a circular die with the words
"AmSouth Bank."
SECTION 7.1: FISCAL YEAR
The fiscal year of the Bank shall be the calendar year.
SECTION 7.2: PROXIES
Unless otherwise provided by resolution of the Board of Directors, the Chief
Executive Officer may cast, or from time to time appoint an attorney or agent of
this Bank to cast, the votes that this Bank may be entitled to cast as the
holder of stock or other securities in any other corporation any of the stock or
other securities of which may be held by this Bank, at meetings of the holders
of the stock or other securities of such other corporation, or to consent in
writing, in the name and on behalf of this Bank as such holder, to any action by
such other corporation, and may instruct the person or persons so appointed as
to the manner of casting such votes or giving such consent, and may execute or
cause to be executed, in the name and on behalf of this Bank and under its
corporate seal or otherwise, all such written proxies or other instruments as
the Chief Executive Officer may deem necessary or proper in the premises.
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June 25, 1997
SECTION 8.1: INDEMNIFICATION
(a) Except as provided below, the Bank shall indemnify an individual
made a party to a proceeding because he or she is or was a director, officer
or employee against liability incurred in the proceeding if:
(1) the individual conducted himself or herself in good faith; and
(2) the individual reasonably believed:
(i) in the case of conduct in his or her official capacity with the
Bank, that the conduct was in its best interests; and
(ii) in all other cases, that the conduct was at least not opposed to
its best interests; and
(3) in the case of any criminal proceeding, the individual had no
reasonable cause to believe his or her conduct was unlawful.
An individual's conduct with respect to an employee benefit plan for a
purpose he or she reasonably believed to be in the interests of the participants
in, and beneficiaries of, the plan is conduct that satisfies the requirement of
(2)(ii) above. The termination of a proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent is not, of
itself, determinative that the director, officer or employee did not meet the
standard of conduct described above.
Indemnification under this paragraph (a) in connection with a proceeding by
or in the right of the Bank is limited to reasonable expenses incurred in
connection with the proceeding.
Notwithstanding the other provisions of this paragraph (a), the Bank may not
indemnify a director, officer or employee (1) in connection with a proceeding by
or in the right of the Bank in which the director, officer or employee was
adjudged liable to the Bank; or (2) in connection with any other proceeding
charging improper personal benefit to the director, officer or employee whether
or not involving action in his or her official capacity, in which the director,
officer or employee was adjudged liable on the basis that personal benefit was
improperly received by him or her.
(b) The Bank shall indemnify a director, officer or employee who was
successful on the merits or otherwise, in the defense of any proceeding, or
of any claim, issue or matter in such proceeding, where he or she was a
party because he or she is or was a director, officer or employee of the
Bank, against reasonable expenses incurred in connection therewith,
notwithstanding that he or she was not successful on any other claim, issue
or matter in any such proceeding.
(c) The Bank may pay for or reimburse the reasonable expenses incurred
by a director, officer or employee who is a party to a proceeding in advance
of final disposition of the proceeding if:
(1) The director, officer or employee furnishes the Bank a written
affirmation of good faith belief that he or she has met the standard of
conduct described in paragraph (a) above;
(2) The director, officer or employee furnishes the Bank a written
undertaking executed personally or on behalf of the director, officer or
employee, to repay the advance if it is ultimately determined that the
director, officer or employee did not meet the standard of conduct, or is
not otherwise entitled to indemnification under paragraph (a) above,
unless indemnification is approved by a court of competent jurisdiction;
and
(3) A determination is made that the facts then known to those making
the determination would not preclude indemnification under this Article.
The undertaking required by (2) above must be an unlimited general
obligation of the director, officer or employee but need not be secured and may
be accepted without reference to financial ability to make repayment.
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June 25, 1997
Determinations and authorizations of payments under this paragraph shall be
made in the manner specified in paragraph (d) below.
(d) The Bank may not indemnify a director, officer or employee under
paragraph (a) above unless the indemnification is authorized in the specific
case after a determination has been made that indemnification of the
director, officer or employee is permissible under the circumstances because
the director, officer or employee has met the standard of conduct set forth
in paragraph (a). The determination shall be made:
(1) By the Board of Directors by a majority vote of a quorum
consisting of directors not at the time parties to the proceeding; or
(2) If a quorum cannot be obtained under (1) above, by a majority
vote of a committee duly designated by the Board of Directors (in which
designation directors who are parties may participate) consisting solely
of two or more directors not at the time parties to the proceeding; or
(3) By special legal counsel (i) selected by the Board of Directors
or its committee in the manner prescribed in (1) or (2); or (ii) if a
quorum of the Board of Directors cannot be obtained under (1) and a
committee cannot be designated under (2), selected by a majority vote of
the full Board of Directors (in which selection directors who are parties
may participate); or
(4) By the shareholders, but shares owned by or voted under the
control of directors, officers or employees who are at the time parties
to the proceeding may not be voted on the determination. A majority of
the shares that are entitled to vote on the transaction by virtue of not
being owned by or under the control of such directors, officers or
employees constitutes a quorum for the purpose of taking action under
this paragraph (d).
Authorization of indemnification and evaluation as to the reasonableness of
expenses shall be made in the same manner as the determination that
indemnification is permissible, except that if the determination is made by
special legal counsel, authorization of indemnification and evaluation as to the
reasonableness of expenses shall be made by those entitled under (3) above to
select counsel.
(e) The Bank may purchase and maintain insurance or furnish similar
protection (including but not limited to trust funds, self-insurance
reserves or the like) on behalf of an individual who is or was a director,
officer or employee of the Bank or who, while a director, officer or
employee of the Bank, is or was serving at the request of the Bank as a
director, officer, partner, trustee, employee or agent of another foreign or
domestic corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise against liability asserted against or incurred by
him or her in that capacity or arising from his or her status as a director,
officer or employee whether or not the Bank would have the power to
indemnify him or her against the same liability under this Article.
(f) Any indemnification or advance for expenses authorized under this
Article shall not be deemed exclusive of and shall be in addition to any
other right to which those indemnified may be entitled under any statute,
rule of law, provisions of articles of incorporation, bylaw, agreement, vote
of shareholders or disinterested directors or otherwise, both as to action
in his or her official capacity and as to action in another capacity while
holding such office.
(g) For purposes of this Article the following words shall have the
meanings set forth below:
(1) "Bank" includes any domestic or foreign predecessor entity of the
Bank in a merger or other transaction in which the predecessor's
existence ceased upon consummation of the merger.
(2) "Director, officer or employee" means an individual who is or was
a director, officer or employee of the Bank or an individual who, while a
director, officer or employee of the Bank, is or was serving at the
Bank's request as a director, officer, partner, trustee, employee or
agent of another foreign or domestic corporation, partnership, joint
venture, trust, employee benefit plan
Page 11 of 12
<PAGE>
June 25, 1997
or other enterprise. A director, officer or employee is considered to be
serving an employee benefit plan at the Bank's request if his or her
duties to the Bank also impose duties on, or otherwise involve services
by, the director, officer or employee to the plan or to participants in
or beneficiaries of the plan. "Director, officer or employee" includes,
unless the context requires otherwise, the estate or personal
representative of a director, officer or employee. For purposes of this
Section 8.1 only, "director" shall include an individual who is or was
serving the Bank as an honorary, advisory or local director.
(3) "Expenses" include counsel fees.
(4) "Liability" means the obligation to pay a judgment, settlement, penalty,
fine (including an excise tax assessed with respect to an employee benefit plan)
or reasonable expenses incurred with respect to a proceeding.
(5) "Official capacity" means (i) when used with respect to a
director, the office of director of the Bank; and (ii) when used with
respect to an individual other than a director, the office in the Bank
held by an officer or the employment relationship undertaken by the
employee on behalf of the Bank. "Official capacity" does not include
service for any other foreign or domestic corporation or any partnership,
joint venture, trust, employee benefit plan or other enterprise.
(6) "Party" includes an individual who was, is or is threatened to be
made a named defendant or respondent in a proceeding.
(7) "Proceeding" means any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or
investigative, and whether formal or informal.
SECTION 9.1: AMENDMENTS
These bylaws may be changed or amended only by a vote of the shareholders.
Page 12 of 12
<PAGE>
EXHIBIT 6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act of
1939, as amended, in connection with the proposed issue of Debt Securities by
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 thereof.
Dated July 3, 1997
AMSOUTH BANK
By: /s/ CHARLES S. NORTHEN, IV
-----------------------------------------
Charles S. Northen, IV
Vice President
and Corporate Trust Officer
<PAGE>
EXHIBIT 7
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR MARCH 31, 1997
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
-----------------------------------------------------
<C> <S> <C> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule RC-A): RCFD
---------
a. Noninterest-bearing balances and currency and coin(1).............................. 0061 405.984 1.a
b. Interest-bearing balances(2)....................................................... 0071 7 1.b
2. Securities
a. Held-to-maturity securities (from Schedule RC-B, column A)......................... 1754 1,085,267 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)....................... 1773 940,398 2.b
3. Federal funds sold and securities purchased under agreements to resell................ 1350 11,475 3
4. Loans and lease financing receivables RCFD
---------
a. Loans and leases, net of unearned income (from Schedule
RC-C)........................................................ 2122 6,880,680 4.a
b. LESS: Allowance for loan and lease losses.................... 3123 91,500 4.b
c. LESS: Allocated transfer state reserve....................... 3124 0 4.c
RCFD
---------
d. Loans and leases, net of unearned income,
allowance, and reserve (Item 4.a minus 4.b and 4.c)................................ 2125 5,789,180 4.d
5. Trading assets (from Schedule RC-D)................................................... 3545 5,346 5.
6. Premises and fixed assets (including capitalized leases).............................. 2145 170,771 6.
7. Other real estate owned (from Schedule RC-M).......................................... 2150 2,069 7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule
RC-M).............................................................................. 2130 12,451 8.
9. Customers' liability to this bank on acceptances outstanding.......................... 2155 1,743 9.
10. Intangible assets (from Schedule RC-M)................................................ 2143 23,221 10.
11. Other assets (from Schedule RC-F)..................................................... 2160 253,923 11.
12. Total assets (sum of Items 1 through 11).............................................. 2170 9,701,845 12.
</TABLE>
- ------------------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposits not held for trading.
<PAGE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR MARCH 31, 1997
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 (CONTINUED)
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN THOUSANDS
-----------------------------------------
<C> <C> <S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C from Schedule RCON
RC-E, part 1)........................................................ RCON 2200 6,690,453 13.a
---------
(1) Noninterest-bearing(1).................................. 8631 1,346,470 13.a.1
(2) Interest-bearing........................................ 6638 5,343,983 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and
16Fs (from Schedule RC-E, Part II).......................... RCFM 2200 816 13.b
---------
(1) Noninterest-bearing..................................... 6631 0 13.b1
(2) Interest-bearing........................................ 6638 816 RCFD 13.b2
---------
14. Federal funds purchased and securities sold under agreements to repurchase................... 2800 1,126,860 14
RCON
---------
15. a. Demand notes issued to the U.S. Treasury.......................................... 2840 128,362 15.a
RCFD
---------
b. Trading liabilities (from Schedule RC-D).......................................... 3545 0 15.b
16. Other borrowed money (includes mortgage indebtedness and
obligations under capitalized leases):
a. With a remaining maturity of one year or less..................................... 2332 315,501 16.a
b. With a remaining maturity of more than one year................................... 2333 425,287 16.b
17. Not applicable
18. Bank's liability on acceptances executed and outstanding..................................... 2920 1,743 18
19. Subordinated notes and debentures(2)......................................................... 3200 0 19
20. Other liabilities (from Schedule RC-G)....................................................... 2930 142,060 20
21. Total liabilities (sum of items 13 through 20)............................................... 2948 8,831,082 21
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus................................................ 3638 0 23
24. Common stock................................................................................. 3230 16,050 24
25. Surplus (exclude all surplus related to preferred stock)..................................... 3838 273,649 25
26. a. Undivided profits and capital reserves............................................ 3622 578,029 26.a
b. Net unrealized holding gains (losses) on available-for-sale securities............ 3434 2,035 26.b
27. Cumulative foreign currency translation adjustments.......................................... 3264 0 27
28. Total equity capital (sum of items 23 through 27)............................................ 3210 870,763 28
29. Total liabilities, limited-life preferred stock, and equity capital (sum of Items 21 and
28)........................................................................................ 3300 9,701,848 29
MEMORANDUM
TO BE REPORTED ONLY WITH THE MARCH REPORT OF CONDITION.
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 the independent RCFD NUMBER
external auditors as of any date during 1996............................................... 6724 2 M.1
1 = Independent audit of the bank conducted in 4 = Directors' examination of the bank performed by
accordance with generally accepted auditing other external auditors (may be required by state
standards by a certified public accounting firm chartering authority)
which submits a report on the bank 5 = Review of the bank's financial statements by
2 = Independent audit of the bank's parent holding external auditors
company conducted in accordance with generally 6 = Compilation of the bank's financial statements by
accepted auditing standards by a certified public external auditors
accounting firm which submits a report on the 7 = Other audit procedures (excluding tax preparation
consolidated holding company (but not on the bank work)
separately) 8 = No external audit work
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)
</TABLE>
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
<PAGE>
EXHIBIT 25(c)
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
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) ____
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(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 of incorporation) (I.R.S. employer identification no.)
2801 Highway 280 South
Birmingham, Alabama 35233
(Address of principal executive offices) (Zip Code)
Protective Life Corporation Guarantee with respect to
Preferred Securities of PLC Capital Trust II
(Title of the indenture securities)
================================================================================
<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.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the trustee
and upon information furnished by the obligor, the obligor is not an
affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes the
certificate of authority of Wilmington Trust Company to commence
business and the authorization of Wilmington Trust Company to
exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b) of
Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 1st day
of July, 1997.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Patricia A. Evans By: /s/ Norma P. Closs
------------------------- -------------------------------
Assistant Secretary Name: Norma P. Closs
Title: Vice President
2
<PAGE>
EXHIBIT A
AMENDED CHARTER
Wilmington Trust Company
Wilmington, Delaware
As existing on May 9, 1987
<PAGE>
Amended Charter
or
Act of Incorporation
of
Wilmington Trust Company
Wilmington Trust Company, originally incorporated by an Act of the General
Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware
Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which
company was changed to "Wilmington Trust Company" by an amendment filed in the
Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act
of Incorporation of which company has been from time to time amended and changed
by merger agreements pursuant to the corporation law for state banks and trust
companies of the State of Delaware, does hereby alter and amend its Charter or
Act of Incorporation so that the same as so altered and amended shall in its
entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of Delaware is
at Rodney Square North, in the City of Wilmington, County of New Castle;
the name of its resident agent is Wilmington Trust Company whose address
is Rodney Square North, in said City. In addition to such principal
office, the said corporation maintains and operates branch offices in the
City of Newark, New Castle County, Delaware, the Town of Newport, New
Castle County, Delaware, at Claymont, New Castle County, Delaware, at
Greenville, New Castle County Delaware, and at Milford Cross Roads, New
Castle County, Delaware, and shall be empowered to open, maintain and
operate branch offices at Ninth and Shipley Streets, 418 Delaware Avenue,
2120 Market Street, and 3605 Market Street, all in the City of Wilmington,
New Castle County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or agencies
of the government of the State of Delaware empowered to confer such
authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation are
to do any or all of the things herein mentioned as fully and to the same
extent as natural persons might or could do and in any part of the world,
viz.:
(1) To sue and be sued, complain and defend in any Court of law or
equity and to make and use a common seal, and alter the seal at
pleasure, to hold, purchase, convey, mortgage or otherwise deal in
real and personal estate and property, and to appoint such officers
and agents as the business of the
<PAGE>
Corporation shall require, to make by-laws not inconsistent with the
Constitution or laws of the United States or of this State, to
discount bills, notes or other evidences of debt, to receive
deposits of money, or securities for money, to buy gold and silver
bullion and foreign coins, to buy and sell bills of exchange, and
generally to use, exercise and enjoy all the powers, rights,
privileges and franchises incident to a corporation which are proper
or necessary for the transaction of the business of the Corporation
hereby created.
(2) To insure titles to real and personal property, or any estate or
interests therein, and to guarantee the holder of such property,
real or personal, against any claim or claims, adverse to his
interest therein, and to prepare and give certificates of title for
any lands or premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every description,
and to carry on the business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate,
deeds, bonds and any and all other personal property of every sort
and kind, from executors, administrators, guardians, public
officers, courts, receivers, assignees, trustees, and from all
fiduciaries, and from all other persons and individuals, and from
all corporations whether state, municipal, corporate or private, and
to rent boxes, safes, vaults and other receptacles for such
property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or underwriting
the stock, bonds or other obligations of any corporation,
association, state or municipality, and may receive and manage any
sinking fund therefor on such terms as may be agreed upon between
the two parties, and in like manner may act as Treasurer of any
corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body politic,
corporation, association or person, either alone or in conjunction
with any other person or persons, corporation or corporations.
2
<PAGE>
(8) To guarantee the validity, performance or effect of any contract
or agreement, and the fidelity of persons holding places of
responsibility or trust; to become surety for any person, or
persons, for the faithful performance of any trust, office, duty,
contract or agreement, either by itself or in conjunction with any
other person, or persons, corporation, or corporations, or in like
manner become surety upon any bond, recognizance, obligation,
judgment, suit, order, or decree to be entered in any court of
record within the State of Delaware or elsewhere, or which may now
or hereafter be required by any law, judge, officer or court in the
State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other trust
capacity in the receiving, holding, managing, and disposing of any
and all estates and property, real, personal or mixed, and to be
appointed as such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator, guardian
or bailee by any persons, corporations, court, officer, or
authority, in the State of Delaware or elsewhere; and whenever this
Corporation is so appointed by any person, corporation, court,
officer or authority such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator, guardian,
bailee, or in any other trust capacity, it shall not be required to
give bond with surety, but its capital stock shall be taken and held
as security for the performance of the duties devolving upon it by
such appointment.
(10) And for its care, management and trouble, and the exercise of
any of its powers hereby given, or for the performance of any of the
duties which it may undertake or be called upon to perform, or for
the assumption of any responsibility the said Corporation may be
entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without the
State of Delaware, or of the Government of the United States, or of
any state, territory, colony, or possession thereof, or of any
foreign government or country; to receive, collect, receipt for, and
dispose of interest, dividends and income upon and from any of the
bonds, mortgages, debentures, notes, shares of capital stock,
securities, obligations, contracts, evidences of indebtedness and
other property held and owned by it, and to exercise in respect of
all such bonds, mortgages, debentures, notes, shares of capital
stock, securities, obligations, contracts, evidences of indebtedness
and other property, any and all the rights, powers and privileges of
individual
3
<PAGE>
owners thereof, including the right to vote thereon; to invest and
deal in and with any of the moneys of the Corporation upon such
securities and in such manner as it may think fit and proper, and
from time to time to vary or realize such investments; to issue
bonds and secure the same by pledges or deeds of trust or mortgages
of or upon the whole or any part of the property held or owned by
the Corporation, and to sell and pledge such bonds, as and when the
Board of Directors shall determine, and in the promotion of its said
corporate business of investment and to the extent authorized by
law, to lease, purchase, hold, sell, assign, transfer, pledge,
mortgage and convey real and personal property of any name and
nature and any estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred by
the laws of the State of Delaware, it is hereby expressly provided that
the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of the
world.
(2) To acquire the good will, rights, property and franchises and to
undertake the whole or any part of the assets and liabilities of any
person, firm, association or corporation, and to pay for the same in
cash, stock of this Corporation, bonds or otherwise; to hold or in
any manner to dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any part of
any business so acquired, and to exercise all the powers necessary
or convenient in and about the conduct and management of such
business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose
of property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every
kind with any person, firm, association or corporation, and, without
limit as to amount, to draw, make, accept, endorse, discount,
execute and issue promissory notes, drafts, bills of exchange,
warrants, bonds, debentures, and other negotiable or transferable
instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same extent as
natural persons might or could do, to purchase or otherwise acquire,
to hold, own, to mortgage, sell, convey or otherwise dispose of,
real and personal property, of every class and description, in any
State, District, Territory or Colony of the United States, and in
any foreign country or place.
4
<PAGE>
(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except
where otherwise expressed in said paragraph) be nowise limited or
restricted by reference to or inference from the terms of any other
clause of this or any other paragraph in this charter, but that the
objects, purposes and powers specified in each of the clauses of
this paragraph shall be regarded as independent objects, purposes
and powers.
Fourth: - (a) The total number of shares of all classes of stock which the
Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or
more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares of
any one series of Preferred Stock shall be alike in every particular,
except that there may be different dates from which dividends, if any,
thereon shall be cumulative, if made cumulative. The voting powers and the
preferences and relative, participating, optional and other special rights
of each such series, and the qualifications, limitations or restrictions
thereof, if any, may differ from those of any and all other series at any
time outstanding; and, subject to the provisions of subparagraph 1 of
Paragraph (c) of this Article Fourth, the Board of Directors of the
Corporation is hereby expressly granted authority to fix by resolution or
resolutions adopted prior to the issuance of any shares of a particular
series of Preferred Stock, the voting powers and the designations,
preferences and relative, optional and other special rights, and the
qualifications, limitations and restrictions of such series, including,
but without limiting the generality of the foregoing, the following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number may
be increased (except where otherwise provided by the Board of
Directors) or decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of the Board of
Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series shall be
paid, the extent of the preference or relation, if any, of such
dividends to the dividends payable on any other class or classes, or
series of the same or other class of
5
<PAGE>
stock and whether such dividends shall be cumulative or
non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares of
any other class or classes or of any series of the same or any other
class or classes of stock of the Corporation and the terms and
conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject
to redemption, and the redemption price or prices and the time or
times at which, and the terms and conditions on which, Preferred
Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such
series upon the voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase account,
if any, to be provided for the Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of the
foregoing include the right, voting as a series or by itself or
together with other series of Preferred Stock or all series of
Preferred Stock as a class, to elect one or more directors of the
Corporation if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of Directors may
determine.
(c) (1) After the requirements with respect to preferential dividends on
the Preferred Stock (fixed in accordance with the provisions of section
(b) of this Article Fourth), if any, shall have been met and after the
Corporation shall have complied with all the requirements, if any, with
respect to the setting aside of sums as sinking funds or redemption or
purchase accounts (fixed in accordance with the provisions of section (b)
of this Article Fourth), and subject further to any conditions which may
be fixed in accordance with the provisions of section (b) of this Article
Fourth, then and not otherwise the holders of Common Stock shall be
entitled to receive such dividends as may be declared from time to time by
the Board of Directors.
(2) After distribution in full of the preferential amount, if any,
(fixed in accordance with the provisions of section (b) of this
Article Fourth), to be distributed to the holders of Preferred Stock
in the event of voluntary or involuntary liquidation, distribution
or sale of assets, dissolution or winding-up, of the Corporation,
the holders of the Common Stock shall be entitled to
6
<PAGE>
receive all of the remaining assets of the Corporation, tangible and
intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares of Common
Stock held by them respectively.
(3) Except as may otherwise be required by law or by the provisions
of such resolution or resolutions as may be adopted by the Board of
Directors pursuant to section (b) of this Article Fourth, each
holder of Common Stock shall have one vote in respect of each share
of Common Stock held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or
series of stock or of other securities of the Corporation shall have any
preemptive right to purchase or subscribe for any unissued stock of any
class or series or any additional shares of any class or series to be
issued by reason of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series, or
carrying any right to purchase stock of any class or series, but any such
unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for stock,
or carrying any right to purchase stock, may be issued and disposed of
pursuant to resolution of the Board of Directors to such persons, firms,
corporations or associations, whether such holders or others, and upon
such terms as may be deemed advisable by the Board of Directors in the
exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and rights
of each other series of Preferred Stock shall, in each case, be as fixed
from time to time by the Board of Directors in the resolution or
resolutions adopted pursuant to authority granted in section (b) of this
Article Fourth and the consent, by class or series vote or otherwise, of
the holders of such of the series of Preferred Stock as are from time to
time outstanding shall not be required for the issuance by the Board of
Directors of any other series of Preferred Stock whether or not the
powers, preferences and rights of such other series shall be fixed by the
Board of Directors as senior to, or on a parity with, the powers,
preferences and rights of such outstanding series, or any of them;
provided, however, that the Board of Directors may provide in the
resolution or resolutions as to any series of Preferred Stock adopted
pursuant to section (b) of this Article Fourth that the consent of the
holders of a majority (or such greater proportion as shall be therein
fixed) of the outstanding shares of such series voting thereon shall be
required for the issuance of any or all other series of Preferred Stock.
7
<PAGE>
(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of Directors
of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred Stock
may, without a class or series vote, be increased or decreased from time
to time by the affirmative vote of the holders of a majority of the stock
of the Corporation entitled to vote thereon.
Fifth: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more than
twenty-five as fixed from time to time by vote of a majority of the whole
Board, provided, however, that the number of directors shall not be
reduced so as to shorten the term of any director at the time in office,
and provided further, that the number of directors constituting the whole
Board shall be twenty-four until otherwise fixed by a majority of the
whole Board.
(b) The Board of Directors shall be divided into three classes, as nearly
equal in number as the then total number of directors constituting the
whole Board permits, with the term of office of one class expiring each
year. At the annual meeting of stockholders in 1982, directors of the
first class shall be elected to hold office for a term expiring at the
next succeeding annual meeting, directors of the second class shall be
elected to hold office for a term expiring at the second succeeding annual
meeting and directors of the third class shall be elected to hold office
for a term expiring at the third succeeding annual meeting. Any vacancies
in the Board of Directors for any reason, and any newly created
directorships resulting from any increase in the directors, may be filled
by the Board of Directors, acting by a majority of the directors then in
office, although less than a quorum, and any directors so chosen shall
hold office until the next annual election of directors. At such election,
the stockholders shall elect a successor to such director to hold office
until the next election of the class for which such director shall have
been chosen and until his successor shall be elected and qualified. No
decrease in the number of directors shall shorten the term of any
incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding the
fact that some lesser percentage may be specified by law, this Charter or
Act of Incorporation or the By-Laws of the Corporation), any director or
the entire Board of Directors of the
8
<PAGE>
Corporation may be removed at any time without cause, but only by the
affirmative vote of the holders of two-thirds or more of the outstanding
shares of capital stock of the Corporation entitled to vote generally in
the election of directors (considered for this purpose as one class) cast
at a meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing, delivered
or mailed by first class United States mail, postage prepaid, to the
Secretary of the Corporation not less than 14 days nor more than 50 days
prior to any meeting of the stockholders called for the election of
directors; provided, however, that if less than 21 days' notice of the
meeting is given to stockholders, such written notice shall be delivered
or mailed, as prescribed, to the Secretary of the Corporation not later
than the close of the seventh day following the day on which notice of the
meeting was mailed to stockholders. Notice of nominations which are
proposed by the Board of Directors shall be given by the Chairman on
behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee proposed
in such notice, (ii) the principal occupation or employment of such
nominee and (iii) the number of shares of stock of the Corporation which
are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with
the foregoing procedure, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, and the power of stockholders to consent in writing, without a
meeting, to the taking of any action is specifically denied.
Sixth: - The Directors shall choose such officers, agent and servants as
may be provided in the By-Laws as they may from time to time find
necessary or proper.
Seventh: - The Corporation hereby created is hereby given the same powers,
rights and privileges as may be conferred upon corporations organized
under the Act entitled "An Act Providing a General Corporation Law",
approved March 10, 1899, as from time to time amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
9
<PAGE>
Ninth: - This Corporation is to have perpetual existence.
Tenth: - The Board of Directors, by resolution passed by a majority of the
whole Board, may designate any of their number to constitute an Executive
Committee, which Committee, to the extent provided in said resolution, or
in the By-Laws of the Company, shall have and may exercise all of the
powers of the Board of Directors in the management of the business and
affairs of the Corporation, and shall have power to authorize the seal of
the Corporation to be affixed to all papers which may require it.
Eleventh: - The private property of the stockholders shall not be liable
for the payment of corporate debts to any extent whatever.
Twelfth: - The Corporation may transact business in any part of the world.
Thirteenth: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by a
vote of the majority of the entire Board. The stockholders may make, alter
or repeal any By-Law whether or not adopted by them, provided however,
that any such additional By-Laws, alterations or repeal may be adopted
only by the affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this purpose as one
class).
Fourteenth: - Meetings of the Directors may be held outside of the State
of Delaware at such places as may be from time to time designated by the
Board, and the Directors may keep the books of the Company outside of the
State of Delaware at such places as may be from time to time designated by
them.
Fifteenth: - (a) In addition to any affirmative vote required by law, and
except as otherwise expressly provided in sections (b) and (c) of this
Article Fifteenth:
(A) any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with or into (i) any Interested Stockholder
(as hereinafter defined) or (ii) any other corporation (whether or
not itself an Interested Stockholder), which, after such merger or
consolidation, would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions)
to or with any Interested Stockholder or any Affiliate of any
Interested Stockholder of any assets of the Corporation or any
Subsidiary having an aggregate fair market value of $1,000,000 or
more, or
10
<PAGE>
(C) the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of related transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Stockholder or any Affiliate of any Interested Stockholder in
exchange for cash, securities or other property (or a combination
thereof) having an aggregate fair market value of $1,000,000 or
more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
similar transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect, directly
or indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible securities
of the Corporation or any Subsidiary which is directly or indirectly
owned by any Interested Stockholder, or any Affiliate of any
Interested Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article Fifteenth as one class ("Voting Shares"). Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this Article
Fifteenth shall mean any transaction which is referred to any
one or more of clauses (A) through (E) of paragraph 1 of the
section (a).
(b) The provisions of section (a) of this Article Fifteenth shall
not be applicable to any particular business combination and such
business combination shall require only such affirmative vote as is
required by law and any other provisions of the Charter or Act of
Incorporation of By-Laws if such business combination has been
approved by a majority of the whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary) who
or which as of the record date for the determination of stockholders
entitled to notice of and to vote on
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<PAGE>
such business combination, or immediately prior to the consummation of any
such transaction:
(A) is the beneficial owner, directly or indirectly, of more than
10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within two
years prior thereto was the beneficial owner, directly or
indirectly, of not less than 10% of the then outstanding voting
Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within two
years prior thereto beneficially owned by any Interested
Stockholder, and such assignment or succession shall have occurred
in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities Act
of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates (as
hereafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has (i)
the right to acquire (whether such right is exercisable immediately
or only after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or (ii)
the right to vote pursuant to any agreement, arrangement or
understanding, or
(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any other
Voting Shares which may be issuable pursuant to any agreement, or upon
exercise of conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings given
those terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on December 31, 1981.
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<PAGE>
(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as in effect in
December 31, 1981) is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Investment
Stockholder set forth in paragraph (2) of this section (c), the term
"Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article Fifteenth on the basis of
information known to them, (1) the number of Voting Shares
beneficially owned by any person (2) whether a person is an
Affiliate or Associate of another, (3) whether a person has an
agreement, arrangement or understanding with another as to the
matters referred to in paragraph (3) of section (c), or (4) whether
the assets subject to any business combination or the consideration
received for the issuance or transfer of securities by the
Corporation, or any Subsidiary has an aggregate fair market value of
$1,000,000 or more.
(e) Nothing contained in this Article Fifteenth shall be construed
to relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
Sixteenth: Notwithstanding any other provision of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and in addition to any
other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of at
least two-thirds of the outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) shall be required to amend,
alter or repeal any provision of Articles Fifth, Thirteenth, Fifteenth or
Sixteenth of this Charter or Act of Incorporation.
Seventeenth: (a) a Director of this Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall not
adversely affect any right or protection of a Director of the
Corporation existing hereunder with respect to any act or omission
occurring prior to the time of such repeal or modification."
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EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
As existing on January 16, 1997
<PAGE>
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. The Annual Meeting of Stockholders shall be held on the third
Thursday in April each year at the principal office at the Company or at such
other date, time, or place as may be designated by resolution by the Board of
Directors.
Section 2. Special meetings of all stockholders may be called at any time
by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given by
mailing to each stockholder at least ten (10) days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the Company
issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
Directors
Section 1. The number and classification of the Board of Directors shall
be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72) years
shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for three
years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed and
conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its
<PAGE>
members, or at the call of the Chairman of the Board of Directors or the
President.
Section 6. Special meetings of the Board of Directors may be called at any
time by the Chairman of the Board of Directors or by the President, and shall be
called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of any
special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal, inability to
act, or disqualification of any director, the Board of Directors, although less
than a quorum, shall have the right to elect the successor who shall hold office
for the remainder of the full term of the class of directors in which the
vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its election
by the stockholders shall appoint an Executive Committee, a Trust Committee, an
Audit Committee and a Compensation Committee, and shall elect from its own
members a Chairman of the Board of Directors and a President who may be the same
person. The Board of Directors shall also elect at such meeting a Secretary and
a Treasurer, who may be the same person, may appoint at any time such other
committees and elect or appoint such other officers as it may deem advisable.
The Board of Directors may also elect at such meeting one or more Associate
Directors.
Section 11. The Board of Directors may at any time remove, with or without
cause, any member of any Committee appointed by it or any associate director or
officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
ARTICLE III
Committees
Section I. Executive Committee
(A) The Executive Committee shall be composed of not more than nine
members who shall be selected by the Board of Directors from its own members and
who
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shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the Board
of Directors when it is not in session to transact all business for and in
behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Executive
Committee or at the call of the Chairman of the Board of Directors. The majority
of its members shall be necessary to constitute a quorum for the transaction of
business. Special meetings of the Executive Committee may be held at any time
when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall be kept
and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient severity to
prevent the conduct and management of the affairs and business of the Company by
its directors and officers as contemplated by these By-Laws any two available
members of the Executive Committee as constituted immediately prior to such
disaster shall constitute a quorum of that Committee for the full conduct and
management of the affairs and business of the Company in accordance with the
provisions of Article III of these By-Laws; and if less than three members of
the Trust Committee is constituted immediately prior to such disaster shall be
available for the transaction of its business, such Executive Committee shall
also be empowered to exercise all of the powers reserved to the Trust Committee
under Article III Section 2 hereof. In the event of the unavailability, at such
time, of a minimum of two members of such Executive Committee, any three
available directors shall constitute the Executive Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the foregoing provisions of this Section. This By-Law shall be subject to
implementation by Resolutions of the Board of Directors presently existing or
hereafter passed from time to time for that purpose, and any provisions of these
By-Laws (other than this Section) and any resolutions which are contrary to the
provisions of this Section or to the provisions of any such implementary
Resolutions shall be suspended during such a disaster period until it shall be
determined by any interim Executive Committee acting under this section that it
shall be to the advantage of the Company to resume the conduct and management of
its affairs and business under all of the other provisions of these By-Laws.
3
<PAGE>
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than thirteen
members who shall be selected by the Board of Directors, a majority of whom
shall be members of the Board of Directors and who shall hold office during the
pleasure of the Board.
(B) The Trust Committee shall have general supervision over the
Trust Department and the investment of trust funds, in all matters, however,
being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office of the
Company or elsewhere in its discretion at such times to be determined by a
majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be kept and
promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint Committees
and/or designate officers or employees of the Company to whom supervision over
the investment of trust funds may be delegated when the Trust Committee is not
in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members who shall
be selected by the Board of Directors from its own members, none of whom shall
be an officer of the Company, and shall hold office at the pleasure of the
Board.
(B) The Audit Committee shall have general supervision over the
Audit Division in all matters however subject to the approval of the Board of
Directors; it shall consider all matters brought to its attention by the officer
in charge of the Audit Division, review all reports of examination of the
Company made by any governmental agency or such independent auditor employed for
that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not more than
4
<PAGE>
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during the
pleasure of the Board.
(B) The Compensation Committee shall in general advise upon all
matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at any time
by the Chairman of the Compensation Committee, the Chairman of the Board of
Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected by the
Board of Directors as an associate director, to serve during the pleasure of the
Board.
(B) An associate director shall be entitled to attend all directors
meetings and participate in the discussion of all matters brought to the Board,
with the exception that he would have no right to vote. An associate director
will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absence or disqualified member.
ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the Board
of
5
<PAGE>
Directors shall preside at all meetings of the Board of Directors at which the
Chairman of the Board shall not be present and shall have such further authority
and powers and shall perform such duties as the Board of Directors or the
Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining to
the office of the President conferred or imposed upon him by statute or assigned
to him by the Board of Directors in the absence of the Chairman of the Board the
President shall have the powers and duties of the Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however denominated
by the Board of Directors, who may at any time perform all the duties of the
Chairman of the Board of Directors and/or the President and such other powers
and duties as may from time to time be assigned to them by the Board of
Directors, the Executive Committee, the Chairman of the Board or the President
and by the officer in charge of the department or division to which they are
assigned.
Section 6. The Secretary shall attend to the giving of notice of meetings
of the stockholders and the Board of Directors, as well as the Committees
thereof, to the keeping of accurate minutes of all such meetings and to
recording the same in the minute books of the Company. In addition to the other
notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all assets
and liabilities of the Company. He shall be custodian of and responsible for all
monies, funds and valuables of the Company and for the keeping of proper records
of the evidence of property or indebtedness and of all the transactions of the
Company. He shall have general supervision of the expenditures of the Company
and shall report to the Board of Directors at each regular meeting of the
condition of the Company, and perform such other duties as may be assigned to
him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
6
<PAGE>
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to all
Vice Presidents with such functional titles as shall be determined from time to
time by the Board of Directors, who shall ex officio hold the office Assistant
Secretary of this Company and who may perform such duties as may be prescribed
by the officer in charge of the department or division to whom they are
assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock shall
be recorded.
Section 2. Certificate of stock shall bear the signature of the President
or any Vice President, however denominated by the Board of Directors and
countersigned by the Secretary or Treasurer or an Assistant Secretary, and the
seal of the corporation shall be engraved thereon. Each certificate shall recite
that the stock represented thereby is transferrable only upon the books of the
Company by the holder thereof or his attorney, upon surrender of the certificate
properly endorsed. Any certificate of stock surrendered to the Company shall be
cancelled at the time of transfer, and before a new certificate or certificates
shall be issued in lieu thereof. Duplicate certificates of stock shall be issued
only upon giving such security as may be satisfactory to the Board of Directors
or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix in
advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of
7
<PAGE>
any dividend, or to any allotment or rights, or to exercise any rights in
respect of any change, conversion or exchange of capital stock, or in connection
with obtaining the consent of stockholders for any purpose, which record date
shall not be more than 60 nor less than 10 days proceeding the date of any
meeting of stockholders or the date for the payment of any dividend, or the date
for the allotment of rights, or the date when any change or conversion or
exchange of capital stock shall go into effect, or a date in connection with
obtaining such consent.
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words "Wilmington Trust Company"
within the inner circle the words "Wilmington, Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice President,
however denominated by the Board of Directors, shall have full power and
authority to enter into, make, sign, execute, acknowledge and/or deliver and the
Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as though
expressly authorized by the Board of Directors and/or the Executive Committee.
8
<PAGE>
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company, other than
salaried officers of the Company, shall be paid such reasonable honoraria or
fees for attending meetings of the Board of Directors as the Board of Directors
may from time to time determine. Directors and associate directors who serve as
members of committees, other than salaried employees of the Company, shall be
paid such reasonable honoraria or fees for services as members of committees as
the Board of Directors shall from time to time determine and directors and
associate directors may be employed by the Company for such special services as
the Board of Directors may from time to time determine and shall be paid for
such special services so performed reasonable compensation as may be determined
by the Board of Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold harmless, to the
fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably
incurred by such person. The Corporation shall indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in defending any
proceeding in advance of its final disposition, provided, however, that the
payment of expenses incurred by a Director officer in his capacity as a Director
or officer in advance of the final disposition of the proceeding shall be made
only upon receipt of an undertaking by the Director or officer to repay all
amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses, under
this Article X is not paid in full within ninety days after a written claim
therefor has been received by the Corporation the claimant may file suit to
recover the unpaid amount of such claim and, if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such claim. In any such
action the Corporation shall have the burden of proving that the claimant was
not entitled to the requested indemnification of payment of expenses
9
<PAGE>
under applicable law.
(D) The rights conferred on any person by this Article X shall not
be exclusive of any other rights which such person may have or hereafter acquire
under any statute, provision of the Charter or Act of Incorporation, these
By-Laws, agreement, vote of stockholders or disinterested Directors or
otherwise.
(E) Any repeal or modification of the foregoing provisions of this
Article X shall not adversely affect any right or protection hereunder of any
person in respect of any act or omission occurring prior to the time of such
repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in whole or
in part, and any new By-Law or By-Laws adopted at any regular or special meeting
of the Board of Directors by a vote of the majority of all the members of the
Board of Directors then in office.
10
<PAGE>
EXHIBIT C
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended,
Wilmington Trust Company hereby consents that reports of examinations by
Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: July 1, 1997 By: /s/ Norma P. Closs
-----------------------------
Name: Norma P. Closs
Title: Vice President
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks with
state publication requirements. It has not been approved by any state banking
authorities. Refer to your appropriate state banking authorities for your state
publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- ---------------------------------------------------------------
Name of Bank City
in the State of DELAWARE, at the close of business on March 31, 1997.
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins............ 181,744
Interest-bearing balances...................................... 0
Held-to-maturity securities........................................ 445,954
Available-for-sale securities...................................... 767,337
Federal funds sold and securities purchased under agreements
to resell ....................................................... 86,900
Loans and lease financing receivables:
Loans and leases, net of unearned income....................... 3,685,616
LESS: Allowance for loan and lease losses...................... 52,478
LESS: Allocated transfer risk reserve ......................... 0
Loans and leases, net of unearned income, allowance, and
reserve ..................................................... 3,633,138
Assets held in trading accounts.................................... 0
Premises and fixed assets (including capitalized leases)........... 94,513
Other real estate owned............................................ 3,702
Investments in unconsolidated subsidiaries and associated companies 20
Customers' liability to this bank on acceptances outstanding....... 0
Intangible assets.................................................. 4,012
Other assets....................................................... 103,524
Total assets....................................................... 5,320,844
CONTINUED ON NEXT PAGE
<PAGE>
LIABILITIES
Deposits:
In domestic offices................................................ 3,618,174
Noninterest-bearing ........................................... 784,267
Interest-bearing .............................................. 2,833,907
Federal funds purchased and Securities sold under agreements to
repurchase ...................................................... 293,862
Demand notes issued to the U.S. Treasury........................... 64,550
Trading liabilities (from Schedule RC-D)........................... 0
Other borrowed money:.............................................. ///////
With original maturity of one year or less..................... 774,000
With original maturity of more than one year................... 43,000
Bank's liability on acceptances executed and outstanding........... 0
Subordinated notes and debentures.................................. 0
Other liabilities (from Schedule RC-G)............................. 95,672
Total liabilities.................................................. 4,889,258
EQUITY CAPITAL
Perpetual preferred stock and related surplus...................... 0
Common Stock....................................................... 500
Surplus (exclude all surplus related to preferred stock)........... 62,118
Undivided profits and capital reserves............................. 371,107
Net unrealized holding gains (losses) on available-for-sale
securities ...................................................... (2,139)
Total equity capital............................................... 431,586
Total liabilities, limited-life preferred stock, and equity
capital ......................................................... 5,320,844
Thousands of dollars
2
<PAGE>
EXHIBIT 25(d)
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
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) ___
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(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 of incorporation) (I.R.S. employer identification no.)
2801 Highway 280 South
Birmingham, Alabama 35233
(Address of principal executive offices) (Zip Code)
Protective Life Corporation Guarantee with respect to
Preferred Securities of PLC Capital Trust III
(Title of the indenture securities)
================================================================================
<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.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the trustee
and upon information furnished by the obligor, the obligor is not an
affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes the
certificate of authority of Wilmington Trust Company to commence
business and the authorization of Wilmington Trust Company to
exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b) of
Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 1st day
of July, 1997.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Patricia A. Evans By:/s/ Norma P. Closs
--------------------- -------------------
Assistant Secretary Name: Norma P. Closs
Title: Vice President
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<PAGE>
EXHIBIT A
AMENDED CHARTER
Wilmington Trust Company
Wilmington, Delaware
As existing on May 9, 1987
<PAGE>
Amended Charter
or
Act of Incorporation
of
Wilmington Trust Company
Wilmington Trust Company, originally incorporated by an Act of the General
Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware
Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which
company was changed to "Wilmington Trust Company" by an amendment filed in the
Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act
of Incorporation of which company has been from time to time amended and changed
by merger agreements pursuant to the corporation law for state banks and trust
companies of the State of Delaware, does hereby alter and amend its Charter or
Act of Incorporation so that the same as so altered and amended shall in its
entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of Delaware is
at Rodney Square North, in the City of Wilmington, County of New Castle;
the name of its resident agent is Wilmington Trust Company whose address
is Rodney Square North, in said City. In addition to such principal
office, the said corporation maintains and operates branch offices in the
City of Newark, New Castle County, Delaware, the Town of Newport, New
Castle County, Delaware, at Claymont, New Castle County, Delaware, at
Greenville, New Castle County Delaware, and at Milford Cross Roads, New
Castle County, Delaware, and shall be empowered to open, maintain and
operate branch offices at Ninth and Shipley Streets, 418 Delaware Avenue,
2120 Market Street, and 3605 Market Street, all in the City of Wilmington,
New Castle County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or agencies
of the government of the State of Delaware empowered to confer such
authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation are
to do any or all of the things herein mentioned as fully and to the same
extent as natural persons might or could do and in any part of the world,
viz.:
(1) To sue and be sued, complain and defend in any Court of law or
equity and to make and use a common seal, and alter the seal at
pleasure, to hold, purchase, convey, mortgage or otherwise deal in
real and personal estate and property, and to appoint such officers
and agents as the business of the
<PAGE>
Corporation shall require, to make by-laws not inconsistent with the
Constitution or laws of the United States or of this State, to
discount bills, notes or other evidences of debt, to receive
deposits of money, or securities for money, to buy gold and silver
bullion and foreign coins, to buy and sell bills of exchange, and
generally to use, exercise and enjoy all the powers, rights,
privileges and franchises incident to a corporation which are proper
or necessary for the transaction of the business of the Corporation
hereby created.
(2) To insure titles to real and personal property, or any estate or
interests therein, and to guarantee the holder of such property,
real or personal, against any claim or claims, adverse to his
interest therein, and to prepare and give certificates of title for
any lands or premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every description,
and to carry on the business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate,
deeds, bonds and any and all other personal property of every sort
and kind, from executors, administrators, guardians, public
officers, courts, receivers, assignees, trustees, and from all
fiduciaries, and from all other persons and individuals, and from
all corporations whether state, municipal, corporate or private, and
to rent boxes, safes, vaults and other receptacles for such
property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or underwriting
the stock, bonds or other obligations of any corporation,
association, state or municipality, and may receive and manage any
sinking fund therefor on such terms as may be agreed upon between
the two parties, and in like manner may act as Treasurer of any
corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body politic,
corporation, association or person, either alone or in conjunction
with any other person or persons, corporation or corporations.
2
<PAGE>
(8) To guarantee the validity, performance or effect of any contract
or agreement, and the fidelity of persons holding places of
responsibility or trust; to become surety for any person, or
persons, for the faithful performance of any trust, office, duty,
contract or agreement, either by itself or in conjunction with any
other person, or persons, corporation, or corporations, or in like
manner become surety upon any bond, recognizance, obligation,
judgment, suit, order, or decree to be entered in any court of
record within the State of Delaware or elsewhere, or which may now
or hereafter be required by any law, judge, officer or court in the
State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other trust
capacity in the receiving, holding, managing, and disposing of any
and all estates and property, real, personal or mixed, and to be
appointed as such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator, guardian
or bailee by any persons, corporations, court, officer, or
authority, in the State of Delaware or elsewhere; and whenever this
Corporation is so appointed by any person, corporation, court,
officer or authority such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator, guardian,
bailee, or in any other trust capacity, it shall not be required to
give bond with surety, but its capital stock shall be taken and held
as security for the performance of the duties devolving upon it by
such appointment.
(10) And for its care, management and trouble, and the exercise of
any of its powers hereby given, or for the performance of any of the
duties which it may undertake or be called upon to perform, or for
the assumption of any responsibility the said Corporation may be
entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without the
State of Delaware, or of the Government of the United States, or of
any state, territory, colony, or possession thereof, or of any
foreign government or country; to receive, collect, receipt for, and
dispose of interest, dividends and income upon and from any of the
bonds, mortgages, debentures, notes, shares of capital stock,
securities, obligations, contracts, evidences of indebtedness and
other property held and owned by it, and to exercise in respect of
all such bonds, mortgages, debentures, notes, shares of capital
stock, securities, obligations, contracts, evidences of indebtedness
and other property, any and all the rights, powers and privileges of
individual
3
<PAGE>
owners thereof, including the right to vote thereon; to invest and
deal in and with any of the moneys of the Corporation upon such
securities and in such manner as it may think fit and proper, and
from time to time to vary or realize such investments; to issue
bonds and secure the same by pledges or deeds of trust or mortgages
of or upon the whole or any part of the property held or owned by
the Corporation, and to sell and pledge such bonds, as and when the
Board of Directors shall determine, and in the promotion of its said
corporate business of investment and to the extent authorized by
law, to lease, purchase, hold, sell, assign, transfer, pledge,
mortgage and convey real and personal property of any name and
nature and any estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred by
the laws of the State of Delaware, it is hereby expressly provided that
the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of the
world.
(2) To acquire the good will, rights, property and franchises and to
undertake the whole or any part of the assets and liabilities of any
person, firm, association or corporation, and to pay for the same in
cash, stock of this Corporation, bonds or otherwise; to hold or in
any manner to dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any part of
any business so acquired, and to exercise all the powers necessary
or convenient in and about the conduct and management of such
business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose
of property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every
kind with any person, firm, association or corporation, and, without
limit as to amount, to draw, make, accept, endorse, discount,
execute and issue promissory notes, drafts, bills of exchange,
warrants, bonds, debentures, and other negotiable or transferable
instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same extent as
natural persons might or could do, to purchase or otherwise acquire,
to hold, own, to mortgage, sell, convey or otherwise dispose of,
real and personal property, of every class and description, in any
State, District, Territory or Colony of the United States, and in
any foreign country or place.
4
<PAGE>
(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except
where otherwise expressed in said paragraph) be nowise limited or
restricted by reference to or inference from the terms of any other
clause of this or any other paragraph in this charter, but that the
objects, purposes and powers specified in each of the clauses of
this paragraph shall be regarded as independent objects, purposes
and powers.
Fourth: - (a) The total number of shares of all classes of stock which the
Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or
more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares of
any one series of Preferred Stock shall be alike in every particular,
except that there may be different dates from which dividends, if any,
thereon shall be cumulative, if made cumulative. The voting powers and the
preferences and relative, participating, optional and other special rights
of each such series, and the qualifications, limitations or restrictions
thereof, if any, may differ from those of any and all other series at any
time outstanding; and, subject to the provisions of subparagraph 1 of
Paragraph (c) of this Article Fourth, the Board of Directors of the
Corporation is hereby expressly granted authority to fix by resolution or
resolutions adopted prior to the issuance of any shares of a particular
series of Preferred Stock, the voting powers and the designations,
preferences and relative, optional and other special rights, and the
qualifications, limitations and restrictions of such series, including,
but without limiting the generality of the foregoing, the following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number may
be increased (except where otherwise provided by the Board of
Directors) or decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of the Board of
Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series shall be
paid, the extent of the preference or relation, if any, of such
dividends to the dividends payable on any other class or classes, or
series of the same or other class of
5
<PAGE>
stock and whether such dividends shall be cumulative or
non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares of
any other class or classes or of any series of the same or any other
class or classes of stock of the Corporation and the terms and
conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject
to redemption, and the redemption price or prices and the time or
times at which, and the terms and conditions on which, Preferred
Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such
series upon the voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase account,
if any, to be provided for the Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of the
foregoing include the right, voting as a series or by itself or
together with other series of Preferred Stock or all series of
Preferred Stock as a class, to elect one or more directors of the
Corporation if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of Directors may
determine.
(c) (1) After the requirements with respect to preferential dividends on
the Preferred Stock (fixed in accordance with the provisions of section
(b) of this Article Fourth), if any, shall have been met and after the
Corporation shall have complied with all the requirements, if any, with
respect to the setting aside of sums as sinking funds or redemption or
purchase accounts (fixed in accordance with the provisions of section (b)
of this Article Fourth), and subject further to any conditions which may
be fixed in accordance with the provisions of section (b) of this Article
Fourth, then and not otherwise the holders of Common Stock shall be
entitled to receive such dividends as may be declared from time to time by
the Board of Directors.
(2) After distribution in full of the preferential amount, if any,
(fixed in accordance with the provisions of section (b) of this
Article Fourth), to be distributed to the holders of Preferred Stock
in the event of voluntary or involuntary liquidation, distribution
or sale of assets, dissolution or winding-up, of the Corporation,
the holders of the Common Stock shall be entitled to
6
<PAGE>
receive all of the remaining assets of the Corporation, tangible and
intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares of Common
Stock held by them respectively.
(3) Except as may otherwise be required by law or by the provisions
of such resolution or resolutions as may be adopted by the Board of
Directors pursuant to section (b) of this Article Fourth, each
holder of Common Stock shall have one vote in respect of each share
of Common Stock held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or
series of stock or of other securities of the Corporation shall have any
preemptive right to purchase or subscribe for any unissued stock of any
class or series or any additional shares of any class or series to be
issued by reason of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series, or
carrying any right to purchase stock of any class or series, but any such
unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for stock,
or carrying any right to purchase stock, may be issued and disposed of
pursuant to resolution of the Board of Directors to such persons, firms,
corporations or associations, whether such holders or others, and upon
such terms as may be deemed advisable by the Board of Directors in the
exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and rights
of each other series of Preferred Stock shall, in each case, be as fixed
from time to time by the Board of Directors in the resolution or
resolutions adopted pursuant to authority granted in section (b) of this
Article Fourth and the consent, by class or series vote or otherwise, of
the holders of such of the series of Preferred Stock as are from time to
time outstanding shall not be required for the issuance by the Board of
Directors of any other series of Preferred Stock whether or not the
powers, preferences and rights of such other series shall be fixed by the
Board of Directors as senior to, or on a parity with, the powers,
preferences and rights of such outstanding series, or any of them;
provided, however, that the Board of Directors may provide in the
resolution or resolutions as to any series of Preferred Stock adopted
pursuant to section (b) of this Article Fourth that the consent of the
holders of a majority (or such greater proportion as shall be therein
fixed) of the outstanding shares of such series voting thereon shall be
required for the issuance of any or all other series of Preferred Stock.
7
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(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of Directors
of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred Stock
may, without a class or series vote, be increased or decreased from time
to time by the affirmative vote of the holders of a majority of the stock
of the Corporation entitled to vote thereon.
Fifth: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more than
twenty-five as fixed from time to time by vote of a majority of the whole
Board, provided, however, that the number of directors shall not be
reduced so as to shorten the term of any director at the time in office,
and provided further, that the number of directors constituting the whole
Board shall be twenty-four until otherwise fixed by a majority of the
whole Board.
(b) The Board of Directors shall be divided into three classes, as nearly
equal in number as the then total number of directors constituting the
whole Board permits, with the term of office of one class expiring each
year. At the annual meeting of stockholders in 1982, directors of the
first class shall be elected to hold office for a term expiring at the
next succeeding annual meeting, directors of the second class shall be
elected to hold office for a term expiring at the second succeeding annual
meeting and directors of the third class shall be elected to hold office
for a term expiring at the third succeeding annual meeting. Any vacancies
in the Board of Directors for any reason, and any newly created
directorships resulting from any increase in the directors, may be filled
by the Board of Directors, acting by a majority of the directors then in
office, although less than a quorum, and any directors so chosen shall
hold office until the next annual election of directors. At such election,
the stockholders shall elect a successor to such director to hold office
until the next election of the class for which such director shall have
been chosen and until his successor shall be elected and qualified. No
decrease in the number of directors shall shorten the term of any
incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding the
fact that some lesser percentage may be specified by law, this Charter or
Act of Incorporation or the By-Laws of the Corporation), any director or
the entire Board of Directors of the
8
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Corporation may be removed at any time without cause, but only by the
affirmative vote of the holders of two-thirds or more of the outstanding
shares of capital stock of the Corporation entitled to vote generally in
the election of directors (considered for this purpose as one class) cast
at a meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing, delivered
or mailed by first class United States mail, postage prepaid, to the
Secretary of the Corporation not less than 14 days nor more than 50 days
prior to any meeting of the stockholders called for the election of
directors; provided, however, that if less than 21 days' notice of the
meeting is given to stockholders, such written notice shall be delivered
or mailed, as prescribed, to the Secretary of the Corporation not later
than the close of the seventh day following the day on which notice of the
meeting was mailed to stockholders. Notice of nominations which are
proposed by the Board of Directors shall be given by the Chairman on
behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee proposed
in such notice, (ii) the principal occupation or employment of such
nominee and (iii) the number of shares of stock of the Corporation which
are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with
the foregoing procedure, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, and the power of stockholders to consent in writing, without a
meeting, to the taking of any action is specifically denied.
Sixth: - The Directors shall choose such officers, agent and servants as
may be provided in the By-Laws as they may from time to time find
necessary or proper.
Seventh: - The Corporation hereby created is hereby given the same powers,
rights and privileges as may be conferred upon corporations organized
under the Act entitled "An Act Providing a General Corporation Law",
approved March 10, 1899, as from time to time amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
9
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Ninth: - This Corporation is to have perpetual existence.
Tenth: - The Board of Directors, by resolution passed by a majority of the
whole Board, may designate any of their number to constitute an Executive
Committee, which Committee, to the extent provided in said resolution, or
in the By-Laws of the Company, shall have and may exercise all of the
powers of the Board of Directors in the management of the business and
affairs of the Corporation, and shall have power to authorize the seal of
the Corporation to be affixed to all papers which may require it.
Eleventh: - The private property of the stockholders shall not be liable
for the payment of corporate debts to any extent whatever.
Twelfth: - The Corporation may transact business in any part of the world.
Thirteenth: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by a
vote of the majority of the entire Board. The stockholders may make, alter
or repeal any By-Law whether or not adopted by them, provided however,
that any such additional By-Laws, alterations or repeal may be adopted
only by the affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this purpose as one
class).
Fourteenth: - Meetings of the Directors may be held outside of the State
of Delaware at such places as may be from time to time designated by the
Board, and the Directors may keep the books of the Company outside of the
State of Delaware at such places as may be from time to time designated by
them.
Fifteenth: - (a) In addition to any affirmative vote required by law, and
except as otherwise expressly provided in sections (b) and (c) of this
Article Fifteenth:
(A) any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with or into (i) any Interested Stockholder
(as hereinafter defined) or (ii) any other corporation (whether or
not itself an Interested Stockholder), which, after such merger or
consolidation, would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions)
to or with any Interested Stockholder or any Affiliate of any
Interested Stockholder of any assets of the Corporation or any
Subsidiary having an aggregate fair market value of $1,000,000 or
more, or
10
<PAGE>
(C) the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of related transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Stockholder or any Affiliate of any Interested Stockholder in
exchange for cash, securities or other property (or a combination
thereof) having an aggregate fair market value of $1,000,000 or
more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
similar transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect, directly
or indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible securities
of the Corporation or any Subsidiary which is directly or indirectly
owned by any Interested Stockholder, or any Affiliate of any
Interested Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article Fifteenth as one class ("Voting Shares"). Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this Article
Fifteenth shall mean any transaction which is referred to any
one or more of clauses (A) through (E) of paragraph 1 of the
section (a).
(b) The provisions of section (a) of this Article Fifteenth shall
not be applicable to any particular business combination and such
business combination shall require only such affirmative vote as is
required by law and any other provisions of the Charter or Act of
Incorporation of By-Laws if such business combination has been
approved by a majority of the whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary) who
or which as of the record date for the determination of stockholders
entitled to notice of and to vote on
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such business combination, or immediately prior to the consummation of any
such transaction:
(A) is the beneficial owner, directly or indirectly, of more than
10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within two
years prior thereto was the beneficial owner, directly or
indirectly, of not less than 10% of the then outstanding voting
Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within two
years prior thereto beneficially owned by any Interested
Stockholder, and such assignment or succession shall have occurred
in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities Act
of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates (as
hereafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has (i)
the right to acquire (whether such right is exercisable immediately
or only after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or (ii)
the right to vote pursuant to any agreement, arrangement or
understanding, or
(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any other
Voting Shares which may be issuable pursuant to any agreement, or upon
exercise of conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings given
those terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on December 31, 1981.
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<PAGE>
(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as in effect in
December 31, 1981) is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Investment
Stockholder set forth in paragraph (2) of this section (c), the term
"Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article Fifteenth on the basis of
information known to them, (1) the number of Voting Shares
beneficially owned by any person (2) whether a person is an
Affiliate or Associate of another, (3) whether a person has an
agreement, arrangement or understanding with another as to the
matters referred to in paragraph (3) of section (c), or (4) whether
the assets subject to any business combination or the consideration
received for the issuance or transfer of securities by the
Corporation, or any Subsidiary has an aggregate fair market value of
$1,00,000 or more.
(e) Nothing contained in this Article Fifteenth shall be construed
to relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
Sixteenth: Notwithstanding any other provision of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and in addition to any
other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of at
least two-thirds of the outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) shall be required to amend,
alter or repeal any provision of Articles Fifth, Thirteenth, Fifteenth or
Sixteenth of this Charter or Act of Incorporation.
Seventeenth: (a) a Director of this Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall not
adversely affect any right or protection of a Director of the
Corporation existing hereunder with respect to any act or omission
occurring prior to the time of such repeal or modification."
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EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
As existing on January 16, 1997
<PAGE>
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. The Annual Meeting of Stockholders shall be held on the third
Thursday in April each year at the principal office at the Company or at such
other date, time, or place as may be designated by resolution by the Board of
Directors.
Section 2. Special meetings of all stockholders may be called at any time
by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given by
mailing to each stockholder at least ten (10) days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the Company
issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
Directors
Section 1. The number and classification of the Board of Directors shall
be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72) years
shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for three
years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed and
conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its
<PAGE>
members, or at the call of the Chairman of the Board of Directors or the
President.
Section 6. Special meetings of the Board of Directors may be called at any
time by the Chairman of the Board of Directors or by the President, and shall be
called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of any
special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal, inability to
act, or disqualification of any director, the Board of Directors, although less
than a quorum, shall have the right to elect the successor who shall hold office
for the remainder of the full term of the class of directors in which the
vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its election
by the stockholders shall appoint an Executive Committee, a Trust Committee, an
Audit Committee and a Compensation Committee, and shall elect from its own
members a Chairman of the Board of Directors and a President who may be the same
person. The Board of Directors shall also elect at such meeting a Secretary and
a Treasurer, who may be the same person, may appoint at any time such other
committees and elect or appoint such other officers as it may deem advisable.
The Board of Directors may also elect at such meeting one or more Associate
Directors.
Section 11. The Board of Directors may at any time remove, with or without
cause, any member of any Committee appointed by it or any associate director or
officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
ARTICLE III
Committees
Section I. Executive Committee
(A) The Executive Committee shall be composed of not more than nine
members who shall be selected by the Board of Directors from its own members and
who
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shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the Board
of Directors when it is not in session to transact all business for and in
behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Executive
Committee or at the call of the Chairman of the Board of Directors. The majority
of its members shall be necessary to constitute a quorum for the transaction of
business. Special meetings of the Executive Committee may be held at any time
when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall be kept
and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient severity to
prevent the conduct and management of the affairs and business of the Company by
its directors and officers as contemplated by these By-Laws any two available
members of the Executive Committee as constituted immediately prior to such
disaster shall constitute a quorum of that Committee for the full conduct and
management of the affairs and business of the Company in accordance with the
provisions of Article III of these By-Laws; and if less than three members of
the Trust Committee is constituted immediately prior to such disaster shall be
available for the transaction of its business, such Executive Committee shall
also be empowered to exercise all of the powers reserved to the Trust Committee
under Article III Section 2 hereof. In the event of the unavailability, at such
time, of a minimum of two members of such Executive Committee, any three
available directors shall constitute the Executive Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the foregoing provisions of this Section. This By-Law shall be subject to
implementation by Resolutions of the Board of Directors presently existing or
hereafter passed from time to time for that purpose, and any provisions of these
By-Laws (other than this Section) and any resolutions which are contrary to the
provisions of this Section or to the provisions of any such implementary
Resolutions shall be suspended during such a disaster period until it shall be
determined by any interim Executive Committee acting under this section that it
shall be to the advantage of the Company to resume the conduct and management of
its affairs and business under all of the other provisions of these By-Laws.
3
<PAGE>
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than thirteen
members who shall be selected by the Board of Directors, a majority of whom
shall be members of the Board of Directors and who shall hold office during the
pleasure of the Board.
(B) The Trust Committee shall have general supervision over the
Trust Department and the investment of trust funds, in all matters, however,
being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office of the
Company or elsewhere in its discretion at such times to be determined by a
majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be kept and
promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint Committees
and/or designate officers or employees of the Company to whom supervision over
the investment of trust funds may be delegated when the Trust Committee is not
in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members who shall
be selected by the Board of Directors from its own members, none of whom shall
be an officer of the Company, and shall hold office at the pleasure of the
Board.
(B) The Audit Committee shall have general supervision over the
Audit Division in all matters however subject to the approval of the Board of
Directors; it shall consider all matters brought to its attention by the officer
in charge of the Audit Division, review all reports of examination of the
Company made by any governmental agency or such independent auditor employed for
that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not more than
4
<PAGE>
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during the
pleasure of the Board.
(B) The Compensation Committee shall in general advise upon all
matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at any time
by the Chairman of the Compensation Committee, the Chairman of the Board of
Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected by the
Board of Directors as an associate director, to serve during the pleasure of the
Board.
(B) An associate director shall be entitled to attend all directors
meetings and participate in the discussion of all matters brought to the Board,
with the exception that he would have no right to vote. An associate director
will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absence or disqualified member.
ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the Board
of
5
<PAGE>
Directors shall preside at all meetings of the Board of Directors at which the
Chairman of the Board shall not be present and shall have such further authority
and powers and shall perform such duties as the Board of Directors or the
Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining to
the office of the President conferred or imposed upon him by statute or assigned
to him by the Board of Directors in the absence of the Chairman of the Board the
President shall have the powers and duties of the Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however denominated
by the Board of Directors, who may at any time perform all the duties of the
Chairman of the Board of Directors and/or the President and such other powers
and duties as may from time to time be assigned to them by the Board of
Directors, the Executive Committee, the Chairman of the Board or the President
and by the officer in charge of the department or division to which they are
assigned.
Section 6. The Secretary shall attend to the giving of notice of meetings
of the stockholders and the Board of Directors, as well as the Committees
thereof, to the keeping of accurate minutes of all such meetings and to
recording the same in the minute books of the Company. In addition to the other
notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all assets
and liabilities of the Company. He shall be custodian of and responsible for all
monies, funds and valuables of the Company and for the keeping of proper records
of the evidence of property or indebtedness and of all the transactions of the
Company. He shall have general supervision of the expenditures of the Company
and shall report to the Board of Directors at each regular meeting of the
condition of the Company, and perform such other duties as may be assigned to
him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
6
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There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to all
Vice Presidents with such functional titles as shall be determined from time to
time by the Board of Directors, who shall ex officio hold the office Assistant
Secretary of this Company and who may perform such duties as may be prescribed
by the officer in charge of the department or division to whom they are
assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock shall
be recorded.
Section 2. Certificate of stock shall bear the signature of the President
or any Vice President, however denominated by the Board of Directors and
countersigned by the Secretary or Treasurer or an Assistant Secretary, and the
seal of the corporation shall be engraved thereon. Each certificate shall recite
that the stock represented thereby is transferrable only upon the books of the
Company by the holder thereof or his attorney, upon surrender of the certificate
properly endorsed. Any certificate of stock surrendered to the Company shall be
cancelled at the time of transfer, and before a new certificate or certificates
shall be issued in lieu thereof. Duplicate certificates of stock shall be issued
only upon giving such security as may be satisfactory to the Board of Directors
or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix in
advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of
7
<PAGE>
any dividend, or to any allotment or rights, or to exercise any rights in
respect of any change, conversion or exchange of capital stock, or in connection
with obtaining the consent of stockholders for any purpose, which record date
shall not be more than 60 nor less than 10 days proceeding the date of any
meeting of stockholders or the date for the payment of any dividend, or the date
for the allotment of rights, or the date when any change or conversion or
exchange of capital stock shall go into effect, or a date in connection with
obtaining such consent.
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words "Wilmington Trust Company"
within the inner circle the words "Wilmington, Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice President,
however denominated by the Board of Directors, shall have full power and
authority to enter into, make, sign, execute, acknowledge and/or deliver and the
Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as though
expressly authorized by the Board of Directors and/or the Executive Committee.
8
<PAGE>
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company, other than
salaried officers of the Company, shall be paid such reasonable honoraria or
fees for attending meetings of the Board of Directors as the Board of Directors
may from time to time determine. Directors and associate directors who serve as
members of committees, other than salaried employees of the Company, shall be
paid such reasonable honoraria or fees for services as members of committees as
the Board of Directors shall from time to time determine and directors and
associate directors may be employed by the Company for such special services as
the Board of Directors may from time to time determine and shall be paid for
such special services so performed reasonable compensation as may be determined
by the Board of Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold harmless, to the
fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably
incurred by such person. The Corporation shall indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in defending any
proceeding in advance of its final disposition, provided, however, that the
payment of expenses incurred by a Director officer in his capacity as a Director
or officer in advance of the final disposition of the proceeding shall be made
only upon receipt of an undertaking by the Director or officer to repay all
amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses, under
this Article X is not paid in full within ninety days after a written claim
therefor has been received by the Corporation the claimant may file suit to
recover the unpaid amount of such claim and, if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such claim. In any such
action the Corporation shall have the burden of proving that the claimant was
not entitled to the requested indemnification of payment of expenses
9
<PAGE>
under applicable law.
(D) The rights conferred on any person by this Article X shall not
be exclusive of any other rights which such person may have or hereafter acquire
under any statute, provision of the Charter or Act of Incorporation, these
By-Laws, agreement, vote of stockholders or disinterested Directors or
otherwise.
(E) Any repeal or modification of the foregoing provisions of this
Article X shall not adversely affect any right or protection hereunder of any
person in respect of any act or omission occurring prior to the time of such
repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in whole or
in part, and any new By-Law or By-Laws adopted at any regular or special meeting
of the Board of Directors by a vote of the majority of all the members of the
Board of Directors then in office.
10
<PAGE>
EXHIBIT C
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended,
Wilmington Trust Company hereby consents that reports of examinations by
Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: July 1, 1997 By: /s/ Norma P. Closs
-----------------------------
Name: Norma P. Closs
Title: Vice President
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks with
state publication requirements. It has not been approved by any state banking
authorities. Refer to your appropriate state banking authorities for your state
publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- ---------------------------------------------------------------
Name of Bank City
in the State of DELAWARE, at the close of business on March 31, 1997.
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins............ 181,744
Interest-bearing balances...................................... 0
Held-to-maturity securities........................................ 445,954
Available-for-sale securities...................................... 767,337
Federal funds sold and securities purchased under agreements
to resell ....................................................... 86,900
Loans and lease financing receivables:
Loans and leases, net of unearned income....................... 3,685,616
LESS: Allowance for loan and lease losses...................... 52,478
LESS: Allocated transfer risk reserve ......................... 0
Loans and leases, net of unearned income, allowance, and
reserve ..................................................... 3,633,138
Assets held in trading accounts.................................... 0
Premises and fixed assets (including capitalized leases)........... 94,513
Other real estate owned............................................ 3,702
Investments in unconsolidated subsidiaries and associated companies 20
Customers' liability to this bank on acceptances outstanding....... 0
Intangible assets.................................................. 4,012
Other assets....................................................... 103,524
Total assets....................................................... 5,320,844
CONTINUED ON NEXT PAGE
<PAGE>
LIABILITIES
Deposits:
In domestic offices................................................ 3,618,174
Noninterest-bearing ........................................... 784,267
Interest-bearing .............................................. 2,833,907
Federal funds purchased and Securities sold under agreements to
repurchase ...................................................... 293,862
Demand notes issued to the U.S. Treasury........................... 64,550
Trading liabilities (from Schedule RC-D)........................... 0
Other borrowed money:.............................................. ///////
With original maturity of one year or less..................... 774,000
With original maturity of more than one year................... 43,000
Bank's liability on acceptances executed and outstanding........... 0
Subordinated notes and debentures.................................. 0
Other liabilities (from Schedule RC-G)............................. 95,672
Total liabilities.................................................. 4,889,258
EQUITY CAPITAL
Perpetual preferred stock and related surplus...................... 0
Common Stock....................................................... 500
Surplus (exclude all surplus related to preferred stock)........... 62,118
Undivided profits and capital reserves............................. 371,107
Net unrealized holding gains (losses) on available-for-sale
securities ...................................................... (2,139)
Total equity capital............................................... 431,586
Total liabilities, limited-life preferred stock, and equity
capital ......................................................... 5,320,844
Thousands of dollars
2
<PAGE>
EXHIBIT 25(e)
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
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) ___
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(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 of incorporation) (I.R.S. employer identification no.)
2801 Highway 280 South
Birmingham, Alabama 35233
(Address of principal executive offices) (Zip Code)
Protective Life Corporation Guarantee with respect to
Preferred Securities of PLC Capital Trust IV
(Title of the indenture securities)
================================================================================
<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.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the trustee
and upon information furnished by the obligor, the obligor is not an
affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes the
certificate of authority of Wilmington Trust Company to commence
business and the authorization of Wilmington Trust Company to
exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b) of
Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 1st day
of July, 1997.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Patricia A. Evans By:/s/ Norma P. Closs
---------------------- ------------------------
Assistant Secretary Name: Norma P. Closs
Title: Vice President
2
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EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
<PAGE>
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of the General
Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware
Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which
company was changed to "WILMINGTON TRUST COMPANY" by an amendment filed in the
Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act
of Incorporation of which company has been from time to time amended and changed
by merger agreements pursuant to the corporation law for state banks and trust
companies of the State of Delaware, does hereby alter and amend its Charter or
Act of Incorporation so that the same as so altered and amended shall in its
entirety read as follows:
FIRST: - The name of this corporation is WILMINGTON TRUST COMPANY.
SECOND: - The location of its principal office in the State of Delaware is
at Rodney Square North, in the City of Wilmington, County of New Castle;
the name of its resident agent is Wilmington Trust Company whose address
is Rodney Square North, in said City. In addition to such principal
office, the said corporation maintains and operates branch offices in the
City of Newark, New Castle County, Delaware, the Town of Newport, New
Castle County, Delaware, at Claymont, New Castle County, Delaware, at
Greenville, New Castle County, Delaware, and at Milford Cross Roads, New
Castle County, Delaware, and shall be empowered to open, maintain and
operate branch offices at Ninth and Shipley Streets, 418 Delaware Avenue,
2120 Market Street, and 3605 Market Street, all in the City of Wilmington,
New Castle County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or agencies
of the government of the State of Delaware empowered to confer such
authority.
THIRD: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation are
to do any or all of the things herein mentioned as fully and to the same
extent as natural persons might or could do and in any part of the world,
viz.:
(1) To sue and be sued, complain and defend in any Court of law or
equity and to make and use a common seal, and alter the seal at
pleasure, to hold, purchase, convey, mortgage or otherwise deal in
real and personal estate and property, and to appoint such officers
and agents as the business of the
<PAGE>
Corporation shall require, to make by-laws not inconsistent with the
Constitution or laws of the United States or of this State, to
discount bills, notes or other evidences of debt, to receive
deposits of money, or securities for money, to buy gold and silver
bullion and foreign coins, to buy and sell bills of exchange, and
generally to use, exercise and enjoy all the powers, rights,
privileges and franchises incident to a corporation which are proper
or necessary for the transaction of the business of the Corporation
hereby created.
(2) To insure titles to real and personal property, or any estate or
interests therein, and to guarantee the holder of such property,
real or personal, against any claim or claims, adverse to his
interest therein, and to prepare and give certificates of title for
any lands or premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every description,
and to carry on the business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate,
deeds, bonds and any and all other personal property of every sort
and kind, from executors, administrators, guardians, public
officers, courts, receivers, assignees, trustees, and from all
fiduciaries, and from all other persons and individuals, and from
all corporations whether state, municipal, corporate or private, and
to rent boxes, safes, vaults and other receptacles for such
property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or underwriting
the stock, bonds or other obligations of any corporation,
association, state or municipality, and may receive and manage any
sinking fund therefor on such terms as may be agreed upon between
the two parties, and in like manner may act as Treasurer of any
corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body politic,
corporation, association or person, either alone or in conjunction
with any other person or persons, corporation or corporations.
2
<PAGE>
(8) To guarantee the validity, performance or effect of any contract
or agreement, and the fidelity of persons holding places of
responsibility or trust; to become surety for any person, or
persons, for the faithful performance of any trust, office, duty,
contract or agreement, either by itself or in conjunction with any
other person, or persons, corporation, or corporations, or in like
manner become surety upon any bond, recognizance, obligation,
judgment, suit, order, or decree to be entered in any court of
record within the State of Delaware or elsewhere, or which may now
or hereafter be required by any law, judge, officer or court in the
State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other trust
capacity in the receiving, holding, managing, and disposing of any
and all estates and property, real, personal or mixed, and to be
appointed as such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator, guardian
or bailee by any persons, corporations, court, officer, or
authority, in the State of Delaware or elsewhere; and whenever this
Corporation is so appointed by any person, corporation, court,
officer or authority such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator, guardian,
bailee, or in any other trust capacity, it shall not be required to
give bond with surety, but its capital stock shall be taken and held
as security for the performance of the duties devolving upon it by
such appointment.
(10) And for its care, management and trouble, and the exercise of
any of its powers hereby given, or for the performance of any of the
duties which it may undertake or be called upon to perform, or for
the assumption of any responsibility the said Corporation may be
entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without the
State of Delaware, or of the Government of the United States, or of
any state, territory, colony, or possession thereof, or of any
foreign government or country; to receive, collect, receipt for, and
dispose of interest, dividends and income upon and from any of the
bonds, mortgages, debentures, notes, shares of capital stock,
securities, obligations, contracts, evidences of indebtedness and
other property held and owned by it, and to exercise in respect of
all such bonds, mortgages, debentures, notes, shares of capital
stock, securities, obligations, contracts, evidences of indebtedness
and other property, any and all the rights, powers and privileges of
individual
3
<PAGE>
owners thereof, including the right to vote thereon; to invest and
deal in and with any of the moneys of the Corporation upon such
securities and in such manner as it may think fit and proper, and
from time to time to vary or realize such investments; to issue
bonds and secure the same by pledges or deeds of trust or mortgages
of or upon the whole or any part of the property held or owned by
the Corporation, and to sell and pledge such bonds, as and when the
Board of Directors shall determine, and in the promotion of its said
corporate business of investment and to the extent authorized by
law, to lease, purchase, hold, sell, assign, transfer, pledge,
mortgage and convey real and personal property of any name and
nature and any estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred by
the laws of the State of Delaware, it is hereby expressly provided that
the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of the
world.
(2) To acquire the good will, rights, property and franchises and to
undertake the whole or any part of the assets and liabilities of any
person, firm, association or corporation, and to pay for the same in
cash, stock of this Corporation, bonds or otherwise; to hold or in
any manner to dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any part of
any business so acquired, and to exercise all the powers necessary
or convenient in and about the conduct and management of such
business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose
of property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every
kind with any person, firm, association or corporation, and, without
limit as to amount, to draw, make, accept, endorse, discount,
execute and issue promissory notes, drafts, bills of exchange,
warrants, bonds, debentures, and other negotiable or transferable
instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same extent as
natural persons might or could do, to purchase or otherwise acquire,
to hold, own, to mortgage, sell, convey or otherwise dispose of,
real and personal property, of every class and description, in any
State, District, Territory or Colony of the United States, and in
any foreign country or place.
4
<PAGE>
(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except
where otherwise expressed in said paragraph) be nowise limited or
restricted by reference to or inference from the terms of any other
clause of this or any other paragraph in this charter, but that the
objects, purposes and powers specified in each of the clauses of
this paragraph shall be regarded as independent objects, purposes
and powers.
FOURTH: - (a) The total number of shares of all classes of stock which the
Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or
more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares of
any one series of Preferred Stock shall be alike in every particular,
except that there may be different dates from which dividends, if any,
thereon shall be cumulative, if made cumulative. The voting powers and the
preferences and relative, participating, optional and other special rights
of each such series, and the qualifications, limitations or restrictions
thereof, if any, may differ from those of any and all other series at any
time outstanding; and, subject to the provisions of subparagraph 1 of
Paragraph (c) of this Article Fourth, the Board of Directors of the
Corporation is hereby expressly granted authority to fix by resolution or
resolutions adopted prior to the issuance of any shares of a particular
series of Preferred Stock, the voting powers and the designations,
preferences and relative, optional and other special rights, and the
qualifications, limitations and restrictions of such series, including,
but without limiting the generality of the foregoing, the following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number may
be increased (except where otherwise provided by the Board of
Directors) or decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of the Board of
Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series shall be
paid, the extent of the preference or relation, if any, of such
dividends to the dividends payable on any other class or classes, or
series of the same or other class of
5
<PAGE>
stock and whether such dividends shall be cumulative or
non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares of
any other class or classes or of any series of the same or any other
class or classes of stock of the Corporation and the terms and
conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject
to redemption, and the redemption price or prices and the time or
times at which, and the terms and conditions on which, Preferred
Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such
series upon the voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase account,
if any, to be provided for the Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of the
foregoing include the right, voting as a series or by itself or
together with other series of Preferred Stock or all series of
Preferred Stock as a class, to elect one or more directors of the
Corporation if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of Directors may
determine.
(c) (1) After the requirements with respect to preferential dividends on
the Preferred Stock (fixed in accordance with the provisions of section
(b) of this Article FOURTH), if any, shall have been met and after the
Corporation shall have complied with all the requirements, if any, with
respect to the setting aside of sums as sinking funds or redemption or
purchase accounts (fixed in accordance with the provisions of section (b)
of this Article FOURTH), and subject further to any conditions which may
be fixed in accordance with the provisions of section (b) of this Article
FOURTH, then and not otherwise the holders of Common Stock shall be
entitled to receive such dividends as may be declared from time to time by
the Board of Directors.
(2) After distribution in full of the preferential amount, if any,
(fixed in accordance with the provisions of section (b) of this
Article FOURTH), to be distributed to the holders of Preferred Stock
in the event of voluntary or involuntary liquidation, distribution
or sale of assets, dissolution or winding-up, of the Corporation,
the holders of the Common Stock shall be entitled to
6
<PAGE>
receive all of the remaining assets of the Corporation, tangible and
intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares of Common
Stock held by them respectively.
(3) Except as may otherwise be required by law or by the provisions
of such resolution or resolutions as may be adopted by the Board of
Directors pursuant to section (b) of this Article Fourth, each
holder of Common Stock shall have one vote in respect of each share
of Common Stock held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or
series of stock or of other securities of the Corporation shall have any
preemptive right to purchase or subscribe for any unissued stock of any
class or series or any additional shares of any class or series to be
issued by reason of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series, or
carrying any right to purchase stock of any class or series, but any such
unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for stock,
or carrying any right to purchase stock, may be issued and disposed of
pursuant to resolution of the Board of Directors to such persons, firms,
corporations or associations, whether such holders or others, and upon
such terms as may be deemed advisable by the Board of Directors in the
exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and rights
of each other series of Preferred Stock shall, in each case, be as fixed
from time to time by the Board of Directors in the resolution or
resolutions adopted pursuant to authority granted in section (b) of this
Article FOURTH and the consent, by class or series vote or otherwise, of
the holders of such of the series of Preferred Stock as are from time to
time outstanding shall not be required for the issuance by the Board of
Directors of any other series of Preferred Stock whether or not the
powers, preferences and rights of such other series shall be fixed by the
Board of Directors as senior to, or on a parity with, the powers,
preferences and rights of such outstanding series, or any of them;
provided, however, that the Board of Directors may provide in the
resolution or resolutions as to any series of Preferred Stock adopted
pursuant to section (b) of this Article FOURTH that the consent of the
holders of a majority (or such greater proportion as shall be therein
fixed) of the outstanding shares of such series voting thereon shall be
required for the issuance of any or all other series of Preferred Stock.
7
<PAGE>
(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of Directors
of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred Stock
may, without a class or series vote, be increased or decreased from time
to time by the affirmative vote of the holders of a majority of the stock
of the Corporation entitled to vote thereon.
FIFTH: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more than
twenty-five as fixed from time to time by vote of a majority of the whole
Board, provided, however, that the number of directors shall not be
reduced so as to shorten the term of any director at the time in office,
and provided further, that the number of directors constituting the whole
Board shall be twenty-four until otherwise fixed by a majority of the
whole Board.
(b) The Board of Directors shall be divided into three classes, as nearly
equal in number as the then total number of directors constituting the
whole Board permits, with the term of office of one class expiring each
year. At the annual meeting of stockholders in 1982, directors of the
first class shall be elected to hold office for a term expiring at the
next succeeding annual meeting, directors of the second class shall be
elected to hold office for a term expiring at the second succeeding annual
meeting and directors of the third class shall be elected to hold office
for a term expiring at the third succeeding annual meeting. Any vacancies
in the Board of Directors for any reason, and any newly created
directorships resulting from any increase in the directors, may be filled
by the Board of Directors, acting by a majority of the directors then in
office, although less than a quorum, and any directors so chosen shall
hold office until the next annual election of directors. At such election,
the stockholders shall elect a successor to such director to hold office
until the next election of the class for which such director shall have
been chosen and until his successor shall be elected and qualified. No
decrease in the number of directors shall shorten the term of any
incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding the
fact that some lesser percentage may be specified by law, this Charter or
Act of Incorporation or the By-Laws of the Corporation), any director or
the entire Board of Directors of the
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Corporation may be removed at any time without cause, but only by the
affirmative vote of the holders of two-thirds or more of the outstanding
shares of capital stock of the Corporation entitled to vote generally in
the election of directors (considered for this purpose as one class) cast
at a meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing, delivered
or mailed by first class United States mail, postage prepaid, to the
Secretary of the Corporation not less than 14 days nor more than 50 days
prior to any meeting of the stockholders called for the election of
directors; provided, however, that if less than 21 days' notice of the
meeting is given to stockholders, such written notice shall be delivered
or mailed, as prescribed, to the Secretary of the Corporation not later
than the close of the seventh day following the day on which notice of the
meeting was mailed to stockholders. Notice of nominations which are
proposed by the Board of Directors shall be given by the Chairman on
behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee proposed
in such notice, (ii) the principal occupation or employment of such
nominee and (iii) the number of shares of stock of the Corporation which
are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with
the foregoing procedure, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, and the power of stockholders to consent in writing, without a
meeting, to the taking of any action is specifically denied.
SIXTH: - The Directors shall choose such officers, agent and servants as
may be provided in the By-Laws as they may from time to time find
necessary or proper.
SEVENTH: - The Corporation hereby created is hereby given the same powers,
rights and privileges as may be conferred upon corporations organized
under the Act entitled "An Act Providing a General Corporation Law",
approved March 10, 1899, as from time to time amended.
EIGHTH: - This Act shall be deemed and taken to be a private Act.
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NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a majority of the
whole Board, may designate any of their number to constitute an Executive
Committee, which Committee, to the extent provided in said resolution, or
in the By-Laws of the Company, shall have and may exercise all of the
powers of the Board of Directors in the management of the business and
affairs of the Corporation, and shall have power to authorize the seal of
the Corporation to be affixed to all papers which may require it.
ELEVENTH: - The private property of the stockholders shall not be liable
for the payment of corporate debts to any extent whatever.
TWELFTH: - The Corporation may transact business in any part of the world.
THIRTEENTH: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by a
vote of the majority of the entire Board. The stockholders may make, alter
or repeal any By-Law whether or not adopted by them, provided however,
that any such additional By-Laws, alterations or repeal may be adopted
only by the affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this purpose as one
class).
FOURTEENTH: - Meetings of the Directors may be held outside of the State
of Delaware at such places as may be from time to time designated by the
Board, and the Directors may keep the books of the Company outside of the
State of Delaware at such places as may be from time to time designated by
them.
FIFTEENTH: - (a) In addition to any affirmative vote required by law, and
except as otherwise expressly provided in sections (b) and (c) of this
Article FIFTEENTH:
(A) any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with or into (i) any Interested Stockholder
(as hereinafter defined) or (ii) any other corporation (whether or
not itself an Interested Stockholder), which, after such merger or
consolidation, would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions)
to or with any Interested Stockholder or any Affiliate of any
Interested Stockholder of any assets of the Corporation or any
Subsidiary having an aggregate fair market value of $1,000,000 or
more, or
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(C) the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of related transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Stockholder or any Affiliate of any Interested Stockholder in
exchange for cash, securities or other property (or a combination
thereof) having an aggregate fair market value of $1,000,000 or
more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
similar transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect, directly
or indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible securities
of the Corporation or any Subsidiary which is directly or indirectly
owned by any Interested Stockholder, or any Affiliate of any
Interested Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article FIFTEENTH as one class ("Voting Shares"). Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this Article
FIFTEENTH shall mean any transaction which is referred to any
one or more of clauses (A) through (E) of paragraph 1 of the
section (a).
(b) The provisions of section (a) of this Article FIFTEENTH shall
not be applicable to any particular business combination and such
business combination shall require only such affirmative vote as is
required by law and any other provisions of the Charter or Act of
Incorporation of By-Laws if such business combination has been
approved by a majority of the whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary) who
or which as of the record date for the determination of stockholders
entitled to notice of and to vote on
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such business combination, or immediately prior to the consummation of any
such transaction:
(A) is the beneficial owner, directly or indirectly, of more than
10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within two
years prior thereto was the beneficial owner, directly or
indirectly, of not less than 10% of the then outstanding voting
Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within two
years prior thereto beneficially owned by any Interested
Stockholder, and such assignment or succession shall have occurred
in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities Act
of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates (as
hereafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has (i)
the right to acquire (whether such right is exercisable immediately
or only after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or (ii)
the right to vote pursuant to any agreement, arrangement or
understanding, or
(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any other
Voting Shares which may be issuable pursuant to any agreement, or upon
exercise of conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings given
those terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on December 31, 1981.
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(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as in effect in
December 31, 1981) is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Investment
Stockholder set forth in paragraph (2) of this section (c), the term
"Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article FIFTEENTH on the basis of
information known to them, (1) the number of Voting Shares
beneficially owned by any person (2) whether a person is an
Affiliate or Associate of another, (3) whether a person has an
agreement, arrangement or understanding with another as to the
matters referred to in paragraph (3) of section (c), or (4) whether
the assets subject to any business combination or the consideration
received for the issuance or transfer of securities by the
Corporation, or any Subsidiary has an aggregate fair market value of
$1,000,000 or more.
(e) Nothing contained in this Article FIFTEENTH shall be construed
to relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
SIXTEENTH: Notwithstanding any other provision of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and in addition to any
other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of at
least two-thirds of the outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) shall be required to amend,
alter or repeal any provision of Articles FIFTH, THIRTEENTH, FIFTEENTH or
SIXTEENTH of this Charter or Act of Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall not
adversely affect any right or protection of a Director of the
Corporation existing hereunder with respect to any act or omission
occurring prior to the time of such repeal or modification.
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EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
<PAGE>
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. The Annual Meeting of Stockholders shall be held on the third
Thursday in April each year at the principal office at the Company or at such
other date, time, or place as may be designated by resolution by the Board of
Directors.
Section 2. Special meetings of all stockholders may be called at any time
by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given by
mailing to each stockholder at least ten (10) days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the Company
issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each share of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
DIRECTORS
Section 1. The number and classification of the Board of Directors shall
be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72) years
shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for three
years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed and
conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its
<PAGE>
members, or at the call of the Chairman of the Board of Directors or the
President.
Section 6. Special meetings of the Board of Directors may be called at any
time by the Chairman of the Board of Directors or by the President, and shall be
called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of any
special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal, inability to
act, or disqualification of any director, the Board of Directors, although less
than a quorum, shall have the right to elect the successor who shall hold office
for the remainder of the full term of the class of directors in which the
vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its election
by the stockholders shall appoint an Executive Committee, a Trust Committee, an
Audit Committee and a Compensation Committee, and shall elect from its own
members a Chairman of the Board of Directors and a President who may be the same
person. The Board of Directors shall also elect at such meeting a Secretary and
a Treasurer, who may be the same person, may appoint at any time such other
committees and elect or appoint such other officers as it may deem advisable.
The Board of Directors may also elect at such meeting one or more Associate
Directors.
Section 11. The Board of Directors may at any time remove, with or without
cause, any member of any Committee appointed by it or any associate director or
officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
ARTICLE III
COMMITTEES
Section I. Executive Committee
(A) The Executive Committee shall be composed of not more than nine
members who shall be selected by the Board of Directors from its own members and
who
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shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the Board
of Directors when it is not in session to transact all business for and in
behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Executive
Committee or at the call of the Chairman of the Board of Directors. The majority
of its members shall be necessary to constitute a quorum for the transaction of
business. Special meetings of the Executive Committee may be held at any time
when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall be kept
and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient severity to
prevent the conduct and management of the affairs and business of the Company by
its directors and officers as contemplated by these By-Laws any two available
members of the Executive Committee as constituted immediately prior to such
disaster shall constitute a quorum of that Committee for the full conduct and
management of the affairs and business of the Company in accordance with the
provisions of Article III of these By-Laws; and if less than three members of
the Trust Committee is constituted immediately prior to such disaster shall be
available for the transaction of its business, such Executive Committee shall
also be empowered to exercise all of the powers reserved to the Trust Committee
under Article III Section 2 hereof. In the event of the unavailability, at such
time, of a minimum of two members of such Executive Committee, any three
available directors shall constitute the Executive Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the foregoing provisions of this Section. This By-Law shall be subject to
implementation by Resolutions of the Board of Directors presently existing or
hereafter passed from time to time for that purpose, and any provisions of these
By-Laws (other than this Section) and any resolutions which are contrary to the
provisions of this Section or to the provisions of any such implementary
Resolutions shall be suspended during such a disaster period until it shall be
determined by any interim Executive Committee acting under this section that it
shall be to the advantage of the Company to resume the conduct and management of
its affairs and business under all of the other provisions of these By-Laws.
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Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than thirteen
members who shall be selected by the Board of Directors, a majority of whom
shall be members of the Board of Directors and who shall hold office during the
pleasure of the Board.
(B) The Trust Committee shall have general supervision over the
Trust Department and the investment of trust funds, in all matters, however,
being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office of the
Company or elsewhere in its discretion at such times to be determined by a
majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be kept and
promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint Committees
and/or designate officers or employees of the Company to whom supervision over
the investment of trust funds may be delegated when the Trust Committee is not
in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members who shall
be selected by the Board of Directors from its own members, none of whom shall
be an officer of the Company, and shall hold office at the pleasure of the
Board.
(B) The Audit Committee shall have general supervision over the
Audit Division in all matters however subject to the approval of the Board of
Directors; it shall consider all matters brought to its attention by the officer
in charge of the Audit Division, review all reports of examination of the
Company made by any governmental agency or such independent auditor employed for
that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not more than
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<PAGE>
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during the
pleasure of the Board.
(B) The Compensation Committee shall in general advise upon all
matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at any time
by the Chairman of the Compensation Committee, the Chairman of the Board of
Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected by the
Board of Directors as an associate director, to serve during the pleasure of the
Board.
(B) An associate director shall be entitled to attend all directors
meetings and participate in the discussion of all matters brought to the Board,
with the exception that he would have no right to vote. An associate director
will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absence or disqualified member.
ARTICLE IV
OFFICERS
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the Board
of
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<PAGE>
Directors shall preside at all meetings of the Board of Directors at which the
Chairman of the Board shall not be present and shall have such further authority
and powers and shall perform such duties as the Board of Directors or the
Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining to
the office of the President conferred or imposed upon him by statute or assigned
to him by the Board of Directors in the absence of the Chairman of the Board the
President shall have the powers and duties of the Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however denominated
by the Board of Directors, who may at any time perform all the duties of the
Chairman of the Board of Directors and/or the President and such other powers
and duties as may from time to time be assigned to them by the Board of
Directors, the Executive Committee, the Chairman of the Board or the President
and by the officer in charge of the department or division to which they are
assigned.
Section 6. The Secretary shall attend to the giving of notice of meetings
of the stockholders and the Board of Directors, as well as the Committees
thereof, to the keeping of accurate minutes of all such meetings and to
recording the same in the minute books of the Company. In addition to the other
notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all assets
and liabilities of the Company. He shall be custodian of and responsible for all
monies, funds and valuables of the Company and for the keeping of proper records
of the evidence of property or indebtedness and of all the transactions of the
Company. He shall have general supervision of the expenditures of the Company
and shall report to the Board of Directors at each regular meeting of the
condition of the Company, and perform such other duties as may be assigned to
him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
6
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There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to all
Vice Presidents with such functional titles as shall be determined from time to
time by the Board of Directors, who shall ex officio hold the office Assistant
Secretary of this Company and who may perform such duties as may be prescribed
by the officer in charge of the department or division to whom they are
assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
STOCK AND STOCK CERTIFICATES
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock shall
be recorded.
Section 2. Certificate of stock shall bear the signature of the President
or any Vice President, however denominated by the Board of Directors and
countersigned by the Secretary or Treasurer or an Assistant Secretary, and the
seal of the corporation shall be engraved thereon. Each certificate shall recite
that the stock represented thereby is transferrable only upon the books of the
Company by the holder thereof or his attorney, upon surrender of the certificate
properly endorsed. Any certificate of stock surrendered to the Company shall be
cancelled at the time of transfer, and before a new certificate or certificates
shall be issued in lieu thereof. Duplicate certificates of stock shall be issued
only upon giving such security as may be satisfactory to the Board of Directors
or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix in
advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of
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any dividend, or to any allotment or rights, or to exercise any rights in
respect of any change, conversion or exchange of capital stock, or in connection
with obtaining the consent of stockholders for any purpose, which record date
shall not be more than 60 nor less than 10 days preceeding the date of any
meeting of stockholders or the date for the payment of any dividend, or the date
for the allotment of rights, or the date when any change or conversion or
exchange of capital stock shall go into effect, or a date in connection with
obtaining such consent.
ARTICLE VI
SEAL
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words "Wilmington Trust Company"
within the inner circle the words "Wilmington, Delaware."
ARTICLE VII
FISCAL YEAR
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
EXECUTION OF INSTRUMENTS OF THE COMPANY
Section 1. The Chairman of the Board, the President or any Vice President,
however denominated by the Board of Directors, shall have full power and
authority to enter into, make, sign, execute, acknowledge and/or deliver and the
Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as though
expressly authorized by the Board of Directors and/or the Executive Committee.
8
<PAGE>
ARTICLE IX
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Section 1. Directors and associate directors of the Company, other than
salaried officers of the Company, shall be paid such reasonable honoraria or
fees for attending meetings of the Board of Directors as the Board of Directors
may from time to time determine. Directors and associate directors who serve as
members of committees, other than salaried employees of the Company, shall be
paid such reasonable honoraria or fees for services as members of committees as
the Board of Directors shall from time to time determine and directors and
associate directors may be employed by the Company for such special services as
the Board of Directors may from time to time determine and shall be paid for
such special services so performed reasonable compensation as may be determined
by the Board of Directors.
ARTICLE X
INDEMNIFICATION
Section 1. (A) The Corporation shall indemnify and hold harmless, to the
fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably
incurred by such person. The Corporation shall indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in defending
any proceeding in advance of its final disposition, provided, however, that
the payment of expenses incurred by a Director or officer in his capacity as
a Director or officer in advance of the final disposition of the proceeding
shall be made only upon receipt of an undertaking by the Director or officer
to repay all amounts advanced if it should be ultimately determined that the
Director or officer is not entitled to be indemnified under this Article or
otherwise.
(C) If a claim for indemnification or payment of expenses, under
this Article X is not paid in full within ninety days after a written claim
therefor has been received by the Corporation the claimant may file suit to
recover the unpaid amount of such claim and, if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such claim. In any such
action the Corporation shall have the burden of proving that the claimant was
not entitled to the requested indemnification of payment of expenses
9
<PAGE>
under applicable law.
(D) The rights conferred on any person by this Article X shall not
be exclusive of any other rights which such person may have or hereafter acquire
under any statute, provision of the Charter or Act of Incorporation, these
By-Laws, agreement, vote of stockholders or disinterested Directors or
otherwise.
(E) Any repeal or modification of the foregoing provisions of this
Article X shall not adversely affect any right or protection hereunder of any
person in respect of any act or omission occurring prior to the time of such
repeal or modification.
ARTICLE XI
AMENDMENTS TO THE BY-LAWS
Section 1. These By-Laws may be altered, amended or repealed, in whole or
in part, and any new By-Law or By-Laws adopted at any regular or special meeting
of the Board of Directors by a vote of the majority of all the members of the
Board of Directors then in office.
10
<PAGE>
EXHIBIT C
SECTION 321(B) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended,
Wilmington Trust Company hereby consents that reports of examinations by
Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: July 1, 1997 By: /s/ Norma P. Closs
-----------------------------
Name: Norma P. Closs
Title: Vice President
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks with
state publication requirements. It has not been approved by any state banking
authorities. Refer to your appropriate state banking authorities for your state
publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- ---------------------------------------------------------------
Name of Bank City
in the State of DELAWARE, at the close of business on March 31, 1997.
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins............ 181,744
Interest-bearing balances...................................... 0
Held-to-maturity securities........................................ 445,954
Available-for-sale securities...................................... 767,337
Federal funds sold and securities purchased under agreements
to resell ....................................................... 86,900
Loans and lease financing receivables:
Loans and leases, net of unearned income..............3,685,616
LESS: Allowance for loan and lease losses............. 52,478
LESS: Allocated transfer risk reserve ................... 0
Loans and leases, net of unearned income, allowance, and
reserve ..................................................... 3,633,138
Assets held in trading accounts.................................... 0
Premises and fixed assets (including capitalized leases)........... 94,513
Other real estate owned............................................ 3,702
Investments in unconsolidated subsidiaries and associated companies 20
Customers' liability to this bank on acceptances outstanding....... 0
Intangible assets.................................................. 4,012
Other assets....................................................... 103,524
Total assets....................................................... 5,320,844
CONTINUED ON NEXT PAGE
<PAGE>
LIABILITIES
Deposits:
In domestic offices................................................ 3,618,174
Noninterest-bearing ....................................784,267
Interest-bearing .....................................2,833,907
Federal funds purchased and Securities sold under agreements to
repurchase ...................................................... 293,862
Demand notes issued to the U.S. Treasury........................... 64,550
Trading liabilities (from Schedule RC-D)........................... 0
Other borrowed money:.............................................. ///////
With original maturity of one year or less..................... 774,000
With original maturity of more than one year................... 43,000
Bank's liability on acceptances executed and outstanding........... 0
Subordinated notes and debentures.................................. 0
Other liabilities (from Schedule RC-G)............................. 95,672
Total liabilities.................................................. 4,889,258
EQUITY CAPITAL
Perpetual preferred stock and related surplus...................... 0
Common Stock....................................................... 500
Surplus (exclude all surplus related to preferred stock)........... 62,118
Undivided profits and capital reserves............................. 371,107
Net unrealized holding gains (losses) on available-for-sale
securities ...................................................... (2,139)
Total equity capital............................................... 431,586
Total liabilities, limited-life preferred stock, and equity
capital ......................................................... 5,320,844
Thousands of dollars
2
<PAGE>
EXHIBIT 25(f)
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
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) ___
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(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 of incorporation) (I.R.S. employer identification no.)
2801 Highway 280 South
Birmingham, Alabama 35233
(Address of principal executive offices) (Zip Code)
Preferred Securities of PLC Capital Trust II
(Title of the indenture securities)
================================================================================
<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.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the trustee
and upon information furnished by the obligor, the obligor is not an
affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes the
certificate of authority of Wilmington Trust Company to commence
business and the authorization of Wilmington Trust Company to
exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b) of
Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 1st day
of July, 1997.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Patricia A. Evans By:/s/ Norma P. Closs
------------------------ ------------------------
Assistant Secretary Name: Norma P. Closs
Title: Vice President
2
<PAGE>
EXHIBIT A
AMENDED CHARTER
Wilmington Trust Company
Wilmington, Delaware
As existing on May 9, 1987
<PAGE>
Amended Charter
or
Act of Incorporation
of
Wilmington Trust Company
Wilmington Trust Company, originally incorporated by an Act of the General
Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware
Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which
company was changed to "Wilmington Trust Company" by an amendment filed in the
Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act
of Incorporation of which company has been from time to time amended and changed
by merger agreements pursuant to the corporation law for state banks and trust
companies of the State of Delaware, does hereby alter and amend its Charter or
Act of Incorporation so that the same as so altered and amended shall in its
entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of Delaware is
at Rodney Square North, in the City of Wilmington, County of New Castle;
the name of its resident agent is Wilmington Trust Company whose address
is Rodney Square North, in said City. In addition to such principal
office, the said corporation maintains and operates branch offices in the
City of Newark, New Castle County, Delaware, the Town of Newport, New
Castle County, Delaware, at Claymont, New Castle County, Delaware, at
Greenville, New Castle County Delaware, and at Milford Cross Roads, New
Castle County, Delaware, and shall be empowered to open, maintain and
operate branch offices at Ninth and Shipley Streets, 418 Delaware Avenue,
2120 Market Street, and 3605 Market Street, all in the City of Wilmington,
New Castle County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or agencies
of the government of the State of Delaware empowered to confer such
authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation are
to do any or all of the things herein mentioned as fully and to the same
extent as natural persons might or could do and in any part of the world,
viz.:
(1) To sue and be sued, complain and defend in any Court of law or
equity and to make and use a common seal, and alter the seal at
pleasure, to hold, purchase, convey, mortgage or otherwise deal in
real and personal estate and property, and to appoint such officers
and agents as the business of the
<PAGE>
Corporation shall require, to make by-laws not inconsistent with the
Constitution or laws of the United States or of this State, to
discount bills, notes or other evidences of debt, to receive
deposits of money, or securities for money, to buy gold and silver
bullion and foreign coins, to buy and sell bills of exchange, and
generally to use, exercise and enjoy all the powers, rights,
privileges and franchises incident to a corporation which are proper
or necessary for the transaction of the business of the Corporation
hereby created.
(2) To insure titles to real and personal property, or any estate or
interests therein, and to guarantee the holder of such property,
real or personal, against any claim or claims, adverse to his
interest therein, and to prepare and give certificates of title for
any lands or premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every description,
and to carry on the business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate,
deeds, bonds and any and all other personal property of every sort
and kind, from executors, administrators, guardians, public
officers, courts, receivers, assignees, trustees, and from all
fiduciaries, and from all other persons and individuals, and from
all corporations whether state, municipal, corporate or private, and
to rent boxes, safes, vaults and other receptacles for such
property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or underwriting
the stock, bonds or other obligations of any corporation,
association, state or municipality, and may receive and manage any
sinking fund therefor on such terms as may be agreed upon between
the two parties, and in like manner may act as Treasurer of any
corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body politic,
corporation, association or person, either alone or in conjunction
with any other person or persons, corporation or corporations.
2
<PAGE>
(8) To guarantee the validity, performance or effect of any contract
or agreement, and the fidelity of persons holding places of
responsibility or trust; to become surety for any person, or
persons, for the faithful performance of any trust, office, duty,
contract or agreement, either by itself or in conjunction with any
other person, or persons, corporation, or corporations, or in like
manner become surety upon any bond, recognizance, obligation,
judgment, suit, order, or decree to be entered in any court of
record within the State of Delaware or elsewhere, or which may now
or hereafter be required by any law, judge, officer or court in the
State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other trust
capacity in the receiving, holding, managing, and disposing of any
and all estates and property, real, personal or mixed, and to be
appointed as such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator, guardian
or bailee by any persons, corporations, court, officer, or
authority, in the State of Delaware or elsewhere; and whenever this
Corporation is so appointed by any person, corporation, court,
officer or authority such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator, guardian,
bailee, or in any other trust capacity, it shall not be required to
give bond with surety, but its capital stock shall be taken and held
as security for the performance of the duties devolving upon it by
such appointment.
(10) And for its care, management and trouble, and the exercise of
any of its powers hereby given, or for the performance of any of the
duties which it may undertake or be called upon to perform, or for
the assumption of any responsibility the said Corporation may be
entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without the
State of Delaware, or of the Government of the United States, or of
any state, territory, colony, or possession thereof, or of any
foreign government or country; to receive, collect, receipt for, and
dispose of interest, dividends and income upon and from any of the
bonds, mortgages, debentures, notes, shares of capital stock,
securities, obligations, contracts, evidences of indebtedness and
other property held and owned by it, and to exercise in respect of
all such bonds, mortgages, debentures, notes, shares of capital
stock, securities, obligations, contracts, evidences of indebtedness
and other property, any and all the rights, powers and privileges of
individual
3
<PAGE>
owners thereof, including the right to vote thereon; to invest and
deal in and with any of the moneys of the Corporation upon such
securities and in such manner as it may think fit and proper, and
from time to time to vary or realize such investments; to issue
bonds and secure the same by pledges or deeds of trust or mortgages
of or upon the whole or any part of the property held or owned by
the Corporation, and to sell and pledge such bonds, as and when the
Board of Directors shall determine, and in the promotion of its said
corporate business of investment and to the extent authorized by
law, to lease, purchase, hold, sell, assign, transfer, pledge,
mortgage and convey real and personal property of any name and
nature and any estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred by
the laws of the State of Delaware, it is hereby expressly provided that
the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of the
world.
(2) To acquire the good will, rights, property and franchises and to
undertake the whole or any part of the assets and liabilities of any
person, firm, association or corporation, and to pay for the same in
cash, stock of this Corporation, bonds or otherwise; to hold or in
any manner to dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any part of
any business so acquired, and to exercise all the powers necessary
or convenient in and about the conduct and management of such
business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose
of property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every
kind with any person, firm, association or corporation, and, without
limit as to amount, to draw, make, accept, endorse, discount,
execute and issue promissory notes, drafts, bills of exchange,
warrants, bonds, debentures, and other negotiable or transferable
instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same extent as
natural persons might or could do, to purchase or otherwise acquire,
to hold, own, to mortgage, sell, convey or otherwise dispose of,
real and personal property, of every class and description, in any
State, District, Territory or Colony of the United States, and in
any foreign country or place.
4
<PAGE>
(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except
where otherwise expressed in said paragraph) be nowise limited or
restricted by reference to or inference from the terms of any other
clause of this or any other paragraph in this charter, but that the
objects, purposes and powers specified in each of the clauses of
this paragraph shall be regarded as independent objects, purposes
and powers.
Fourth: - (a) The total number of shares of all classes of stock which the
Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or
more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares of
any one series of Preferred Stock shall be alike in every particular,
except that there may be different dates from which dividends, if any,
thereon shall be cumulative, if made cumulative. The voting powers and the
preferences and relative, participating, optional and other special rights
of each such series, and the qualifications, limitations or restrictions
thereof, if any, may differ from those of any and all other series at any
time outstanding; and, subject to the provisions of subparagraph 1 of
Paragraph (c) of this Article Fourth, the Board of Directors of the
Corporation is hereby expressly granted authority to fix by resolution or
resolutions adopted prior to the issuance of any shares of a particular
series of Preferred Stock, the voting powers and the designations,
preferences and relative, optional and other special rights, and the
qualifications, limitations and restrictions of such series, including,
but without limiting the generality of the foregoing, the following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number may
be increased (except where otherwise provided by the Board of
Directors) or decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of the Board of
Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series shall be
paid, the extent of the preference or relation, if any, of such
dividends to the dividends payable on any other class or classes, or
series of the same or other class of
5
<PAGE>
stock and whether such dividends shall be cumulative or
non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares of
any other class or classes or of any series of the same or any other
class or classes of stock of the Corporation and the terms and
conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject
to redemption, and the redemption price or prices and the time or
times at which, and the terms and conditions on which, Preferred
Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such
series upon the voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase account,
if any, to be provided for the Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of the
foregoing include the right, voting as a series or by itself or
together with other series of Preferred Stock or all series of
Preferred Stock as a class, to elect one or more directors of the
Corporation if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of Directors may
determine.
(c) (1) After the requirements with respect to preferential dividends on
the Preferred Stock (fixed in accordance with the provisions of section
(b) of this Article Fourth), if any, shall have been met and after the
Corporation shall have complied with all the requirements, if any, with
respect to the setting aside of sums as sinking funds or redemption or
purchase accounts (fixed in accordance with the provisions of section (b)
of this Article Fourth), and subject further to any conditions which may
be fixed in accordance with the provisions of section (b) of this Article
Fourth, then and not otherwise the holders of Common Stock shall be
entitled to receive such dividends as may be declared from time to time by
the Board of Directors.
(2) After distribution in full of the preferential amount, if any,
(fixed in accordance with the provisions of section (b) of this
Article Fourth), to be distributed to the holders of Preferred Stock
in the event of voluntary or involuntary liquidation, distribution
or sale of assets, dissolution or winding-up, of the Corporation,
the holders of the Common Stock shall be entitled to
6
<PAGE>
receive all of the remaining assets of the Corporation, tangible and
intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares of Common
Stock held by them respectively.
(3) Except as may otherwise be required by law or by the provisions
of such resolution or resolutions as may be adopted by the Board of
Directors pursuant to section (b) of this Article Fourth, each
holder of Common Stock shall have one vote in respect of each share
of Common Stock held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or
series of stock or of other securities of the Corporation shall have any
preemptive right to purchase or subscribe for any unissued stock of any
class or series or any additional shares of any class or series to be
issued by reason of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series, or
carrying any right to purchase stock of any class or series, but any such
unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for stock,
or carrying any right to purchase stock, may be issued and disposed of
pursuant to resolution of the Board of Directors to such persons, firms,
corporations or associations, whether such holders or others, and upon
such terms as may be deemed advisable by the Board of Directors in the
exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and rights
of each other series of Preferred Stock shall, in each case, be as fixed
from time to time by the Board of Directors in the resolution or
resolutions adopted pursuant to authority granted in section (b) of this
Article Fourth and the consent, by class or series vote or otherwise, of
the holders of such of the series of Preferred Stock as are from time to
time outstanding shall not be required for the issuance by the Board of
Directors of any other series of Preferred Stock whether or not the
powers, preferences and rights of such other series shall be fixed by the
Board of Directors as senior to, or on a parity with, the powers,
preferences and rights of such outstanding series, or any of them;
provided, however, that the Board of Directors may provide in the
resolution or resolutions as to any series of Preferred Stock adopted
pursuant to section (b) of this Article Fourth that the consent of the
holders of a majority (or such greater proportion as shall be therein
fixed) of the outstanding shares of such series voting thereon shall be
required for the issuance of any or all other series of Preferred Stock.
7
<PAGE>
(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of Directors
of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred Stock
may, without a class or series vote, be increased or decreased from time
to time by the affirmative vote of the holders of a majority of the stock
of the Corporation entitled to vote thereon.
Fifth: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more than
twenty-five as fixed from time to time by vote of a majority of the whole
Board, provided, however, that the number of directors shall not be
reduced so as to shorten the term of any director at the time in office,
and provided further, that the number of directors constituting the whole
Board shall be twenty-four until otherwise fixed by a majority of the
whole Board.
(b) The Board of Directors shall be divided into three classes, as nearly
equal in number as the then total number of directors constituting the
whole Board permits, with the term of office of one class expiring each
year. At the annual meeting of stockholders in 1982, directors of the
first class shall be elected to hold office for a term expiring at the
next succeeding annual meeting, directors of the second class shall be
elected to hold office for a term expiring at the second succeeding annual
meeting and directors of the third class shall be elected to hold office
for a term expiring at the third succeeding annual meeting. Any vacancies
in the Board of Directors for any reason, and any newly created
directorships resulting from any increase in the directors, may be filled
by the Board of Directors, acting by a majority of the directors then in
office, although less than a quorum, and any directors so chosen shall
hold office until the next annual election of directors. At such election,
the stockholders shall elect a successor to such director to hold office
until the next election of the class for which such director shall have
been chosen and until his successor shall be elected and qualified. No
decrease in the number of directors shall shorten the term of any
incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding the
fact that some lesser percentage may be specified by law, this Charter or
Act of Incorporation or the By-Laws of the Corporation), any director or
the entire Board of Directors of the
8
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Corporation may be removed at any time without cause, but only by the
affirmative vote of the holders of two-thirds or more of the outstanding
shares of capital stock of the Corporation entitled to vote generally in
the election of directors (considered for this purpose as one class) cast
at a meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing, delivered
or mailed by first class United States mail, postage prepaid, to the
Secretary of the Corporation not less than 14 days nor more than 50 days
prior to any meeting of the stockholders called for the election of
directors; provided, however, that if less than 21 days' notice of the
meeting is given to stockholders, such written notice shall be delivered
or mailed, as prescribed, to the Secretary of the Corporation not later
than the close of the seventh day following the day on which notice of the
meeting was mailed to stockholders. Notice of nominations which are
proposed by the Board of Directors shall be given by the Chairman on
behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee proposed
in such notice, (ii) the principal occupation or employment of such
nominee and (iii) the number of shares of stock of the Corporation which
are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with
the foregoing procedure, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, and the power of stockholders to consent in writing, without a
meeting, to the taking of any action is specifically denied.
Sixth: - The Directors shall choose such officers, agent and servants as
may be provided in the By-Laws as they may from time to time find
necessary or proper.
Seventh: - The Corporation hereby created is hereby given the same powers,
rights and privileges as may be conferred upon corporations organized
under the Act entitled "An Act Providing a General Corporation Law",
approved March 10, 1899, as from time to time amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
9
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Ninth: - This Corporation is to have perpetual existence.
Tenth: - The Board of Directors, by resolution passed by a majority of the
whole Board, may designate any of their number to constitute an Executive
Committee, which Committee, to the extent provided in said resolution, or
in the By-Laws of the Company, shall have and may exercise all of the
powers of the Board of Directors in the management of the business and
affairs of the Corporation, and shall have power to authorize the seal of
the Corporation to be affixed to all papers which may require it.
Eleventh: - The private property of the stockholders shall not be liable
for the payment of corporate debts to any extent whatever.
Twelfth: - The Corporation may transact business in any part of the world.
Thirteenth: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by a
vote of the majority of the entire Board. The stockholders may make, alter
or repeal any By-Law whether or not adopted by them, provided however,
that any such additional By-Laws, alterations or repeal may be adopted
only by the affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this purpose as one
class).
Fourteenth: - Meetings of the Directors may be held outside of the State
of Delaware at such places as may be from time to time designated by the
Board, and the Directors may keep the books of the Company outside of the
State of Delaware at such places as may be from time to time designated by
them.
Fifteenth: - (a) In addition to any affirmative vote required by law, and
except as otherwise expressly provided in sections (b) and (c) of this
Article Fifteenth:
(A) any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with or into (i) any Interested Stockholder
(as hereinafter defined) or (ii) any other corporation (whether or
not itself an Interested Stockholder), which, after such merger or
consolidation, would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions)
to or with any Interested Stockholder or any Affiliate of any
Interested Stockholder of any assets of the Corporation or any
Subsidiary having an aggregate fair market value of $1,000,000 or
more, or
10
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(C) the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of related transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Stockholder or any Affiliate of any Interested Stockholder in
exchange for cash, securities or other property (or a combination
thereof) having an aggregate fair market value of $1,000,000 or
more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
similar transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect, directly
or indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible securities
of the Corporation or any Subsidiary which is directly or indirectly
owned by any Interested Stockholder, or any Affiliate of any
Interested Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article Fifteenth as one class ("Voting Shares"). Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this Article
Fifteenth shall mean any transaction which is referred to any
one or more of clauses (A) through (E) of paragraph 1 of the
section (a).
(b) The provisions of section (a) of this Article Fifteenth shall
not be applicable to any particular business combination and such
business combination shall require only such affirmative vote as is
required by law and any other provisions of the Charter or Act of
Incorporation of By-Laws if such business combination has been
approved by a majority of the whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary) who
or which as of the record date for the determination of stockholders
entitled to notice of and to vote on
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such business combination, or immediately prior to the consummation of any
such transaction:
(A) is the beneficial owner, directly or indirectly, of more than
10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within two
years prior thereto was the beneficial owner, directly or
indirectly, of not less than 10% of the then outstanding voting
Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within two
years prior thereto beneficially owned by any Interested
Stockholder, and such assignment or succession shall have occurred
in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities Act
of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates (as
hereafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has (i)
the right to acquire (whether such right is exercisable immediately
or only after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or (ii)
the right to vote pursuant to any agreement, arrangement or
understanding, or
(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any other
Voting Shares which may be issuable pursuant to any agreement, or upon
exercise of conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings given
those terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on December 31, 1981.
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<PAGE>
(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as in effect in
December 31, 1981) is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Investment
Stockholder set forth in paragraph (2) of this section (c), the term
"Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article Fifteenth on the basis of
information known to them, (1) the number of Voting Shares
beneficially owned by any person (2) whether a person is an
Affiliate or Associate of another, (3) whether a person has an
agreement, arrangement or understanding with another as to the
matters referred to in paragraph (3) of section (c), or (4) whether
the assets subject to any business combination or the consideration
received for the issuance or transfer of securities by the
Corporation, or any Subsidiary has an aggregate fair market value of
$1,00,000 or more.
(e) Nothing contained in this Article Fifteenth shall be construed
to relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
Sixteenth: Notwithstanding any other provision of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and in addition to any
other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of at
least two-thirds of the outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) shall be required to amend,
alter or repeal any provision of Articles Fifth, Thirteenth, Fifteenth or
Sixteenth of this Charter or Act of Incorporation.
Seventeenth: (a) a Director of this Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall not
adversely affect any right or protection of a Director of the
Corporation existing hereunder with respect to any act or omission
occurring prior to the time of such repeal or modification."
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EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
As existing on January 16, 1997
<PAGE>
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. The Annual Meeting of Stockholders shall be held on the third
Thursday in April each year at the principal office at the Company or at such
other date, time, or place as may be designated by resolution by the Board of
Directors.
Section 2. Special meetings of all stockholders may be called at any time
by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given by
mailing to each stockholder at least ten (10) days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the Company
issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
Directors
Section 1. The number and classification of the Board of Directors shall
be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72) years
shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for three
years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed and
conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its
<PAGE>
members, or at the call of the Chairman of the Board of Directors or the
President.
Section 6. Special meetings of the Board of Directors may be called at any
time by the Chairman of the Board of Directors or by the President, and shall be
called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of any
special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal, inability to
act, or disqualification of any director, the Board of Directors, although less
than a quorum, shall have the right to elect the successor who shall hold office
for the remainder of the full term of the class of directors in which the
vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its election
by the stockholders shall appoint an Executive Committee, a Trust Committee, an
Audit Committee and a Compensation Committee, and shall elect from its own
members a Chairman of the Board of Directors and a President who may be the same
person. The Board of Directors shall also elect at such meeting a Secretary and
a Treasurer, who may be the same person, may appoint at any time such other
committees and elect or appoint such other officers as it may deem advisable.
The Board of Directors may also elect at such meeting one or more Associate
Directors.
Section 11. The Board of Directors may at any time remove, with or without
cause, any member of any Committee appointed by it or any associate director or
officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
ARTICLE III
Committees
Section I. Executive Committee
(A) The Executive Committee shall be composed of not more than nine
members who shall be selected by the Board of Directors from its own members and
who
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shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the Board
of Directors when it is not in session to transact all business for and in
behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Executive
Committee or at the call of the Chairman of the Board of Directors. The majority
of its members shall be necessary to constitute a quorum for the transaction of
business. Special meetings of the Executive Committee may be held at any time
when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall be kept
and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient severity to
prevent the conduct and management of the affairs and business of the Company by
its directors and officers as contemplated by these By-Laws any two available
members of the Executive Committee as constituted immediately prior to such
disaster shall constitute a quorum of that Committee for the full conduct and
management of the affairs and business of the Company in accordance with the
provisions of Article III of these By-Laws; and if less than three members of
the Trust Committee is constituted immediately prior to such disaster shall be
available for the transaction of its business, such Executive Committee shall
also be empowered to exercise all of the powers reserved to the Trust Committee
under Article III Section 2 hereof. In the event of the unavailability, at such
time, of a minimum of two members of such Executive Committee, any three
available directors shall constitute the Executive Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the foregoing provisions of this Section. This By-Law shall be subject to
implementation by Resolutions of the Board of Directors presently existing or
hereafter passed from time to time for that purpose, and any provisions of these
By-Laws (other than this Section) and any resolutions which are contrary to the
provisions of this Section or to the provisions of any such implementary
Resolutions shall be suspended during such a disaster period until it shall be
determined by any interim Executive Committee acting under this section that it
shall be to the advantage of the Company to resume the conduct and management of
its affairs and business under all of the other provisions of these By-Laws.
3
<PAGE>
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than thirteen
members who shall be selected by the Board of Directors, a majority of whom
shall be members of the Board of Directors and who shall hold office during the
pleasure of the Board.
(B) The Trust Committee shall have general supervision over the
Trust Department and the investment of trust funds, in all matters, however,
being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office of the
Company or elsewhere in its discretion at such times to be determined by a
majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be kept and
promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint Committees
and/or designate officers or employees of the Company to whom supervision over
the investment of trust funds may be delegated when the Trust Committee is not
in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members who shall
be selected by the Board of Directors from its own members, none of whom shall
be an officer of the Company, and shall hold office at the pleasure of the
Board.
(B) The Audit Committee shall have general supervision over the
Audit Division in all matters however subject to the approval of the Board of
Directors; it shall consider all matters brought to its attention by the officer
in charge of the Audit Division, review all reports of examination of the
Company made by any governmental agency or such independent auditor employed for
that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not more than
4
<PAGE>
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during the
pleasure of the Board.
(B) The Compensation Committee shall in general advise upon all
matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at any time
by the Chairman of the Compensation Committee, the Chairman of the Board of
Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected by the
Board of Directors as an associate director, to serve during the pleasure of the
Board.
(B) An associate director shall be entitled to attend all directors
meetings and participate in the discussion of all matters brought to the Board,
with the exception that he would have no right to vote. An associate director
will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absence or disqualified member.
ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the Board
of
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<PAGE>
Directors shall preside at all meetings of the Board of Directors at which the
Chairman of the Board shall not be present and shall have such further authority
and powers and shall perform such duties as the Board of Directors or the
Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining to
the office of the President conferred or imposed upon him by statute or assigned
to him by the Board of Directors in the absence of the Chairman of the Board the
President shall have the powers and duties of the Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however denominated
by the Board of Directors, who may at any time perform all the duties of the
Chairman of the Board of Directors and/or the President and such other powers
and duties as may from time to time be assigned to them by the Board of
Directors, the Executive Committee, the Chairman of the Board or the President
and by the officer in charge of the department or division to which they are
assigned.
Section 6. The Secretary shall attend to the giving of notice of meetings
of the stockholders and the Board of Directors, as well as the Committees
thereof, to the keeping of accurate minutes of all such meetings and to
recording the same in the minute books of the Company. In addition to the other
notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all assets
and liabilities of the Company. He shall be custodian of and responsible for all
monies, funds and valuables of the Company and for the keeping of proper records
of the evidence of property or indebtedness and of all the transactions of the
Company. He shall have general supervision of the expenditures of the Company
and shall report to the Board of Directors at each regular meeting of the
condition of the Company, and perform such other duties as may be assigned to
him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
6
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There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to all
Vice Presidents with such functional titles as shall be determined from time to
time by the Board of Directors, who shall ex officio hold the office Assistant
Secretary of this Company and who may perform such duties as may be prescribed
by the officer in charge of the department or division to whom they are
assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock shall
be recorded.
Section 2. Certificate of stock shall bear the signature of the President
or any Vice President, however denominated by the Board of Directors and
countersigned by the Secretary or Treasurer or an Assistant Secretary, and the
seal of the corporation shall be engraved thereon. Each certificate shall recite
that the stock represented thereby is transferrable only upon the books of the
Company by the holder thereof or his attorney, upon surrender of the certificate
properly endorsed. Any certificate of stock surrendered to the Company shall be
cancelled at the time of transfer, and before a new certificate or certificates
shall be issued in lieu thereof. Duplicate certificates of stock shall be issued
only upon giving such security as may be satisfactory to the Board of Directors
or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix in
advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of
7
<PAGE>
any dividend, or to any allotment or rights, or to exercise any rights in
respect of any change, conversion or exchange of capital stock, or in connection
with obtaining the consent of stockholders for any purpose, which record date
shall not be more than 60 nor less than 10 days proceeding the date of any
meeting of stockholders or the date for the payment of any dividend, or the date
for the allotment of rights, or the date when any change or conversion or
exchange of capital stock shall go into effect, or a date in connection with
obtaining such consent.
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words "Wilmington Trust Company"
within the inner circle the words "Wilmington, Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice President,
however denominated by the Board of Directors, shall have full power and
authority to enter into, make, sign, execute, acknowledge and/or deliver and the
Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as though
expressly authorized by the Board of Directors and/or the Executive Committee.
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<PAGE>
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company, other than
salaried officers of the Company, shall be paid such reasonable honoraria or
fees for attending meetings of the Board of Directors as the Board of Directors
may from time to time determine. Directors and associate directors who serve as
members of committees, other than salaried employees of the Company, shall be
paid such reasonable honoraria or fees for services as members of committees as
the Board of Directors shall from time to time determine and directors and
associate directors may be employed by the Company for such special services as
the Board of Directors may from time to time determine and shall be paid for
such special services so performed reasonable compensation as may be determined
by the Board of Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold harmless, to the
fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably
incurred by such person. The Corporation shall indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in defending any
proceeding in advance of its final disposition, provided, however, that the
payment of expenses incurred by a Director officer in his capacity as a Director
or officer in advance of the final disposition of the proceeding shall be made
only upon receipt of an undertaking by the Director or officer to repay all
amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses, under
this Article X is not paid in full within ninety days after a written claim
therefor has been received by the Corporation the claimant may file suit to
recover the unpaid amount of such claim and, if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such claim. In any such
action the Corporation shall have the burden of proving that the claimant was
not entitled to the requested indemnification of payment of expenses
9
<PAGE>
under applicable law.
(D) The rights conferred on any person by this Article X shall not
be exclusive of any other rights which such person may have or hereafter acquire
under any statute, provision of the Charter or Act of Incorporation, these
By-Laws, agreement, vote of stockholders or disinterested Directors or
otherwise.
(E) Any repeal or modification of the foregoing provisions of this
Article X shall not adversely affect any right or protection hereunder of any
person in respect of any act or omission occurring prior to the time of such
repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in whole or
in part, and any new By-Law or By-Laws adopted at any regular or special meeting
of the Board of Directors by a vote of the majority of all the members of the
Board of Directors then in office.
10
<PAGE>
EXHIBIT C
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended,
Wilmington Trust Company hereby consents that reports of examinations by
Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: July 1, 1997 By: /s/ Norma P. Closs
-----------------------------
Name: Norma P. Closs
Title: Vice President
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks with
state publication requirements. It has not been approved by any state banking
authorities. Refer to your appropriate state banking authorities for your state
publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- ---------------------------------------------------------------
Name of Bank City
in the State of DELAWARE, at the close of business on March 31, 1997.
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins............ 181,744
Interest-bearing balances...................................... 0
Held-to-maturity securities........................................ 445,954
Available-for-sale securities...................................... 767,337
Federal funds sold and securities purchased under agreements
to resell ....................................................... 86,900
Loans and lease financing receivables:
Loans and leases, net of unearned income....................... 3,685,616
LESS: Allowance for loan and lease losses...................... 52,478
LESS: Allocated transfer risk reserve ......................... 0
Loans and leases, net of unearned income, allowance, and
reserve ..................................................... 3,633,138
Assets held in trading accounts.................................... 0
Premises and fixed assets (including capitalized leases)........... 94,513
Other real estate owned............................................ 3,702
Investments in unconsolidated subsidiaries and associated companies 20
Customers' liability to this bank on acceptances outstanding....... 0
Intangible assets.................................................. 4,012
Other assets....................................................... 103,524
Total assets....................................................... 5,320,844
CONTINUED ON NEXT PAGE
<PAGE>
LIABILITIES
Deposits:
In domestic offices................................................ 3,618,174
Noninterest-bearing ........................................... 784,267
Interest-bearing .............................................. 2,833,907
Federal funds purchased and Securities sold under agreements to
repurchase ...................................................... 293,862
Demand notes issued to the U.S. Treasury........................... 64,550
Trading liabilities (from Schedule RC-D)........................... 0
Other borrowed money:.............................................. ///////
With original maturity of one year or less..................... 774,000
With original maturity of more than one year................... 43,000
Bank's liability on acceptances executed and outstanding........... 0
Subordinated notes and debentures.................................. 0
Other liabilities (from Schedule RC-G)............................. 95,672
Total liabilities.................................................. 4,889,258
EQUITY CAPITAL
Perpetual preferred stock and related surplus...................... 0
Common Stock....................................................... 500
Surplus (exclude all surplus related to preferred stock)........... 62,118
Undivided profits and capital reserves............................. 371,107
Net unrealized holding gains (losses) on available-for-sale
securities ...................................................... (2,139)
Total equity capital............................................... 431,586
Total liabilities, limited-life preferred stock, and equity
capital ......................................................... 5,320,844
Thousands of dollars
2
<PAGE>
EXHIBIT 25(g)
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
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) ___
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
PROTECTIVE LIFE CORPORATION
PLC CAPITAL TRUST III
(Exact name of obligor as specified in its charter)
Delaware 95-2492236
Delaware To Be Applied For
(State of incorporation) (I.R.S. employer identification no.)
2801 Highway 280 South
Birmingham, Alabama 35233
(Address of principal executive offices) (Zip Code)
Preferred Securities of PLC Capital Trust III
(Title of the indenture securities)
================================================================================
<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.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the trustee
and upon information furnished by the obligor, the obligor is not an
affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes the
certificate of authority of Wilmington Trust Company to commence
business and the authorization of Wilmington Trust Company to
exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b) of
Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 1st day
of July, 1997.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Patrica A. Evans By:/s/ Norma P. Closs
--------------------- -------------------
Assistant Secretary Name: Norma P. Closs
Title: Vice President
2
<PAGE>
EXHIBIT A
AMENDED CHARTER
Wilmington Trust Company
Wilmington, Delaware
As existing on May 9, 1987
<PAGE>
Amended Charter
or
Act of Incorporation
of
Wilmington Trust Company
Wilmington Trust Company, originally incorporated by an Act of the General
Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware
Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which
company was changed to "Wilmington Trust Company" by an amendment filed in the
Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act
of Incorporation of which company has been from time to time amended and changed
by merger agreements pursuant to the corporation law for state banks and trust
companies of the State of Delaware, does hereby alter and amend its Charter or
Act of Incorporation so that the same as so altered and amended shall in its
entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of Delaware is
at Rodney Square North, in the City of Wilmington, County of New Castle;
the name of its resident agent is Wilmington Trust Company whose address
is Rodney Square North, in said City. In addition to such principal
office, the said corporation maintains and operates branch offices in the
City of Newark, New Castle County, Delaware, the Town of Newport, New
Castle County, Delaware, at Claymont, New Castle County, Delaware, at
Greenville, New Castle County Delaware, and at Milford Cross Roads, New
Castle County, Delaware, and shall be empowered to open, maintain and
operate branch offices at Ninth and Shipley Streets, 418 Delaware Avenue,
2120 Market Street, and 3605 Market Street, all in the City of Wilmington,
New Castle County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or agencies
of the government of the State of Delaware empowered to confer such
authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation are
to do any or all of the things herein mentioned as fully and to the same
extent as natural persons might or could do and in any part of the world,
viz.:
(1) To sue and be sued, complain and defend in any Court of law or
equity and to make and use a common seal, and alter the seal at
pleasure, to hold, purchase, convey, mortgage or otherwise deal in
real and personal estate and property, and to appoint such officers
and agents as the business of the
<PAGE>
Corporation shall require, to make by-laws not inconsistent with the
Constitution or laws of the United States or of this State, to
discount bills, notes or other evidences of debt, to receive
deposits of money, or securities for money, to buy gold and silver
bullion and foreign coins, to buy and sell bills of exchange, and
generally to use, exercise and enjoy all the powers, rights,
privileges and franchises incident to a corporation which are proper
or necessary for the transaction of the business of the Corporation
hereby created.
(2) To insure titles to real and personal property, or any estate or
interests therein, and to guarantee the holder of such property,
real or personal, against any claim or claims, adverse to his
interest therein, and to prepare and give certificates of title for
any lands or premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every description,
and to carry on the business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate,
deeds, bonds and any and all other personal property of every sort
and kind, from executors, administrators, guardians, public
officers, courts, receivers, assignees, trustees, and from all
fiduciaries, and from all other persons and individuals, and from
all corporations whether state, municipal, corporate or private, and
to rent boxes, safes, vaults and other receptacles for such
property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or underwriting
the stock, bonds or other obligations of any corporation,
association, state or municipality, and may receive and manage any
sinking fund therefor on such terms as may be agreed upon between
the two parties, and in like manner may act as Treasurer of any
corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body politic,
corporation, association or person, either alone or in conjunction
with any other person or persons, corporation or corporations.
2
<PAGE>
(8) To guarantee the validity, performance or effect of any contract
or agreement, and the fidelity of persons holding places of
responsibility or trust; to become surety for any person, or
persons, for the faithful performance of any trust, office, duty,
contract or agreement, either by itself or in conjunction with any
other person, or persons, corporation, or corporations, or in like
manner become surety upon any bond, recognizance, obligation,
judgment, suit, order, or decree to be entered in any court of
record within the State of Delaware or elsewhere, or which may now
or hereafter be required by any law, judge, officer or court in the
State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other trust
capacity in the receiving, holding, managing, and disposing of any
and all estates and property, real, personal or mixed, and to be
appointed as such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator, guardian
or bailee by any persons, corporations, court, officer, or
authority, in the State of Delaware or elsewhere; and whenever this
Corporation is so appointed by any person, corporation, court,
officer or authority such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator, guardian,
bailee, or in any other trust capacity, it shall not be required to
give bond with surety, but its capital stock shall be taken and held
as security for the performance of the duties devolving upon it by
such appointment.
(10) And for its care, management and trouble, and the exercise of
any of its powers hereby given, or for the performance of any of the
duties which it may undertake or be called upon to perform, or for
the assumption of any responsibility the said Corporation may be
entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without the
State of Delaware, or of the Government of the United States, or of
any state, territory, colony, or possession thereof, or of any
foreign government or country; to receive, collect, receipt for, and
dispose of interest, dividends and income upon and from any of the
bonds, mortgages, debentures, notes, shares of capital stock,
securities, obligations, contracts, evidences of indebtedness and
other property held and owned by it, and to exercise in respect of
all such bonds, mortgages, debentures, notes, shares of capital
stock, securities, obligations, contracts, evidences of indebtedness
and other property, any and all the rights, powers and privileges of
individual
3
<PAGE>
owners thereof, including the right to vote thereon; to invest and
deal in and with any of the moneys of the Corporation upon such
securities and in such manner as it may think fit and proper, and
from time to time to vary or realize such investments; to issue
bonds and secure the same by pledges or deeds of trust or mortgages
of or upon the whole or any part of the property held or owned by
the Corporation, and to sell and pledge such bonds, as and when the
Board of Directors shall determine, and in the promotion of its said
corporate business of investment and to the extent authorized by
law, to lease, purchase, hold, sell, assign, transfer, pledge,
mortgage and convey real and personal property of any name and
nature and any estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred by
the laws of the State of Delaware, it is hereby expressly provided that
the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of the
world.
(2) To acquire the good will, rights, property and franchises and to
undertake the whole or any part of the assets and liabilities of any
person, firm, association or corporation, and to pay for the same in
cash, stock of this Corporation, bonds or otherwise; to hold or in
any manner to dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any part of
any business so acquired, and to exercise all the powers necessary
or convenient in and about the conduct and management of such
business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose
of property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every
kind with any person, firm, association or corporation, and, without
limit as to amount, to draw, make, accept, endorse, discount,
execute and issue promissory notes, drafts, bills of exchange,
warrants, bonds, debentures, and other negotiable or transferable
instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same extent as
natural persons might or could do, to purchase or otherwise acquire,
to hold, own, to mortgage, sell, convey or otherwise dispose of,
real and personal property, of every class and description, in any
State, District, Territory or Colony of the United States, and in
any foreign country or place.
4
<PAGE>
(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except
where otherwise expressed in said paragraph) be nowise limited or
restricted by reference to or inference from the terms of any other
clause of this or any other paragraph in this charter, but that the
objects, purposes and powers specified in each of the clauses of
this paragraph shall be regarded as independent objects, purposes
and powers.
Fourth: - (a) The total number of shares of all classes of stock which the
Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or
more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares of
any one series of Preferred Stock shall be alike in every particular,
except that there may be different dates from which dividends, if any,
thereon shall be cumulative, if made cumulative. The voting powers and the
preferences and relative, participating, optional and other special rights
of each such series, and the qualifications, limitations or restrictions
thereof, if any, may differ from those of any and all other series at any
time outstanding; and, subject to the provisions of subparagraph 1 of
Paragraph (c) of this Article Fourth, the Board of Directors of the
Corporation is hereby expressly granted authority to fix by resolution or
resolutions adopted prior to the issuance of any shares of a particular
series of Preferred Stock, the voting powers and the designations,
preferences and relative, optional and other special rights, and the
qualifications, limitations and restrictions of such series, including,
but without limiting the generality of the foregoing, the following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number may
be increased (except where otherwise provided by the Board of
Directors) or decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of the Board of
Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series shall be
paid, the extent of the preference or relation, if any, of such
dividends to the dividends payable on any other class or classes, or
series of the same or other class of
5
<PAGE>
stock and whether such dividends shall be cumulative or
non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares of
any other class or classes or of any series of the same or any other
class or classes of stock of the Corporation and the terms and
conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject
to redemption, and the redemption price or prices and the time or
times at which, and the terms and conditions on which, Preferred
Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such
series upon the voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase account,
if any, to be provided for the Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of the
foregoing include the right, voting as a series or by itself or
together with other series of Preferred Stock or all series of
Preferred Stock as a class, to elect one or more directors of the
Corporation if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of Directors may
determine.
(c) (1) After the requirements with respect to preferential dividends on
the Preferred Stock (fixed in accordance with the provisions of section
(b) of this Article Fourth), if any, shall have been met and after the
Corporation shall have complied with all the requirements, if any, with
respect to the setting aside of sums as sinking funds or redemption or
purchase accounts (fixed in accordance with the provisions of section (b)
of this Article Fourth), and subject further to any conditions which may
be fixed in accordance with the provisions of section (b) of this Article
Fourth, then and not otherwise the holders of Common Stock shall be
entitled to receive such dividends as may be declared from time to time by
the Board of Directors.
(2) After distribution in full of the preferential amount, if any,
(fixed in accordance with the provisions of section (b) of this
Article Fourth), to be distributed to the holders of Preferred Stock
in the event of voluntary or involuntary liquidation, distribution
or sale of assets, dissolution or winding-up, of the Corporation,
the holders of the Common Stock shall be entitled to
6
<PAGE>
receive all of the remaining assets of the Corporation, tangible and
intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares of Common
Stock held by them respectively.
(3) Except as may otherwise be required by law or by the provisions
of such resolution or resolutions as may be adopted by the Board of
Directors pursuant to section (b) of this Article Fourth, each
holder of Common Stock shall have one vote in respect of each share
of Common Stock held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or
series of stock or of other securities of the Corporation shall have any
preemptive right to purchase or subscribe for any unissued stock of any
class or series or any additional shares of any class or series to be
issued by reason of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series, or
carrying any right to purchase stock of any class or series, but any such
unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for stock,
or carrying any right to purchase stock, may be issued and disposed of
pursuant to resolution of the Board of Directors to such persons, firms,
corporations or associations, whether such holders or others, and upon
such terms as may be deemed advisable by the Board of Directors in the
exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and rights
of each other series of Preferred Stock shall, in each case, be as fixed
from time to time by the Board of Directors in the resolution or
resolutions adopted pursuant to authority granted in section (b) of this
Article Fourth and the consent, by class or series vote or otherwise, of
the holders of such of the series of Preferred Stock as are from time to
time outstanding shall not be required for the issuance by the Board of
Directors of any other series of Preferred Stock whether or not the
powers, preferences and rights of such other series shall be fixed by the
Board of Directors as senior to, or on a parity with, the powers,
preferences and rights of such outstanding series, or any of them;
provided, however, that the Board of Directors may provide in the
resolution or resolutions as to any series of Preferred Stock adopted
pursuant to section (b) of this Article Fourth that the consent of the
holders of a majority (or such greater proportion as shall be therein
fixed) of the outstanding shares of such series voting thereon shall be
required for the issuance of any or all other series of Preferred Stock.
7
<PAGE>
(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of Directors
of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred Stock
may, without a class or series vote, be increased or decreased from time
to time by the affirmative vote of the holders of a majority of the stock
of the Corporation entitled to vote thereon.
Fifth: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more than
twenty-five as fixed from time to time by vote of a majority of the whole
Board, provided, however, that the number of directors shall not be
reduced so as to shorten the term of any director at the time in office,
and provided further, that the number of directors constituting the whole
Board shall be twenty-four until otherwise fixed by a majority of the
whole Board.
(b) The Board of Directors shall be divided into three classes, as nearly
equal in number as the then total number of directors constituting the
whole Board permits, with the term of office of one class expiring each
year. At the annual meeting of stockholders in 1982, directors of the
first class shall be elected to hold office for a term expiring at the
next succeeding annual meeting, directors of the second class shall be
elected to hold office for a term expiring at the second succeeding annual
meeting and directors of the third class shall be elected to hold office
for a term expiring at the third succeeding annual meeting. Any vacancies
in the Board of Directors for any reason, and any newly created
directorships resulting from any increase in the directors, may be filled
by the Board of Directors, acting by a majority of the directors then in
office, although less than a quorum, and any directors so chosen shall
hold office until the next annual election of directors. At such election,
the stockholders shall elect a successor to such director to hold office
until the next election of the class for which such director shall have
been chosen and until his successor shall be elected and qualified. No
decrease in the number of directors shall shorten the term of any
incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding the
fact that some lesser percentage may be specified by law, this Charter or
Act of Incorporation or the By-Laws of the Corporation), any director or
the entire Board of Directors of the
8
<PAGE>
Corporation may be removed at any time without cause, but only by the
affirmative vote of the holders of two-thirds or more of the outstanding
shares of capital stock of the Corporation entitled to vote generally in
the election of directors (considered for this purpose as one class) cast
at a meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing, delivered
or mailed by first class United States mail, postage prepaid, to the
Secretary of the Corporation not less than 14 days nor more than 50 days
prior to any meeting of the stockholders called for the election of
directors; provided, however, that if less than 21 days' notice of the
meeting is given to stockholders, such written notice shall be delivered
or mailed, as prescribed, to the Secretary of the Corporation not later
than the close of the seventh day following the day on which notice of the
meeting was mailed to stockholders. Notice of nominations which are
proposed by the Board of Directors shall be given by the Chairman on
behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee proposed
in such notice, (ii) the principal occupation or employment of such
nominee and (iii) the number of shares of stock of the Corporation which
are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with
the foregoing procedure, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, and the power of stockholders to consent in writing, without a
meeting, to the taking of any action is specifically denied.
Sixth: - The Directors shall choose such officers, agent and servants as
may be provided in the By-Laws as they may from time to time find
necessary or proper.
Seventh: - The Corporation hereby created is hereby given the same powers,
rights and privileges as may be conferred upon corporations organized
under the Act entitled "An Act Providing a General Corporation Law",
approved March 10, 1899, as from time to time amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
9
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Ninth: - This Corporation is to have perpetual existence.
Tenth: - The Board of Directors, by resolution passed by a majority of the
whole Board, may designate any of their number to constitute an Executive
Committee, which Committee, to the extent provided in said resolution, or
in the By-Laws of the Company, shall have and may exercise all of the
powers of the Board of Directors in the management of the business and
affairs of the Corporation, and shall have power to authorize the seal of
the Corporation to be affixed to all papers which may require it.
Eleventh: - The private property of the stockholders shall not be liable
for the payment of corporate debts to any extent whatever.
Twelfth: - The Corporation may transact business in any part of the world.
Thirteenth: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by a
vote of the majority of the entire Board. The stockholders may make, alter
or repeal any By-Law whether or not adopted by them, provided however,
that any such additional By-Laws, alterations or repeal may be adopted
only by the affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this purpose as one
class).
Fourteenth: - Meetings of the Directors may be held outside of the State
of Delaware at such places as may be from time to time designated by the
Board, and the Directors may keep the books of the Company outside of the
State of Delaware at such places as may be from time to time designated by
them.
Fifteenth: - (a) In addition to any affirmative vote required by law, and
except as otherwise expressly provided in sections (b) and (c) of this
Article Fifteenth:
(A) any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with or into (i) any Interested Stockholder
(as hereinafter defined) or (ii) any other corporation (whether or
not itself an Interested Stockholder), which, after such merger or
consolidation, would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions)
to or with any Interested Stockholder or any Affiliate of any
Interested Stockholder of any assets of the Corporation or any
Subsidiary having an aggregate fair market value of $1,000,000 or
more, or
10
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(C) the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of related transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Stockholder or any Affiliate of any Interested Stockholder in
exchange for cash, securities or other property (or a combination
thereof) having an aggregate fair market value of $1,000,000 or
more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
similar transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect, directly
or indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible securities
of the Corporation or any Subsidiary which is directly or indirectly
owned by any Interested Stockholder, or any Affiliate of any
Interested Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article Fifteenth as one class ("Voting Shares"). Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this Article
Fifteenth shall mean any transaction which is referred to any
one or more of clauses (A) through (E) of paragraph 1 of the
section (a).
(b) The provisions of section (a) of this Article Fifteenth shall
not be applicable to any particular business combination and such
business combination shall require only such affirmative vote as is
required by law and any other provisions of the Charter or Act of
Incorporation of By-Laws if such business combination has been
approved by a majority of the whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary) who
or which as of the record date for the determination of stockholders
entitled to notice of and to vote on
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such business combination, or immediately prior to the consummation of any
such transaction:
(A) is the beneficial owner, directly or indirectly, of more than
10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within two
years prior thereto was the beneficial owner, directly or
indirectly, of not less than 10% of the then outstanding voting
Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within two
years prior thereto beneficially owned by any Interested
Stockholder, and such assignment or succession shall have occurred
in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities Act
of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates (as
hereafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has (i)
the right to acquire (whether such right is exercisable immediately
or only after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or (ii)
the right to vote pursuant to any agreement, arrangement or
understanding, or
(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any other
Voting Shares which may be issuable pursuant to any agreement, or upon
exercise of conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings given
those terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on December 31, 1981.
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<PAGE>
(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as in effect in
December 31, 1981) is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Investment
Stockholder set forth in paragraph (2) of this section (c), the term
"Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article Fifteenth on the basis of
information known to them, (1) the number of Voting Shares
beneficially owned by any person (2) whether a person is an
Affiliate or Associate of another, (3) whether a person has an
agreement, arrangement or understanding with another as to the
matters referred to in paragraph (3) of section (c), or (4) whether
the assets subject to any business combination or the consideration
received for the issuance or transfer of securities by the
Corporation, or any Subsidiary has an aggregate fair market value of
$1,00,000 or more.
(e) Nothing contained in this Article Fifteenth shall be construed
to relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
Sixteenth: Notwithstanding any other provision of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and in addition to any
other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of at
least two-thirds of the outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) shall be required to amend,
alter or repeal any provision of Articles Fifth, Thirteenth, Fifteenth or
Sixteenth of this Charter or Act of Incorporation.
Seventeenth: (a) a Director of this Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall not
adversely affect any right or protection of a Director of the
Corporation existing hereunder with respect to any act or omission
occurring prior to the time of such repeal or modification."
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EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
As existing on January 16, 1997
<PAGE>
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. The Annual Meeting of Stockholders shall be held on the third
Thursday in April each year at the principal office at the Company or at such
other date, time, or place as may be designated by resolution by the Board of
Directors.
Section 2. Special meetings of all stockholders may be called at any time
by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given by
mailing to each stockholder at least ten (10) days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the Company
issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
Directors
Section 1. The number and classification of the Board of Directors shall
be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72) years
shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for three
years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed and
conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its
<PAGE>
members, or at the call of the Chairman of the Board of Directors or the
President.
Section 6. Special meetings of the Board of Directors may be called at any
time by the Chairman of the Board of Directors or by the President, and shall be
called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of any
special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal, inability to
act, or disqualification of any director, the Board of Directors, although less
than a quorum, shall have the right to elect the successor who shall hold office
for the remainder of the full term of the class of directors in which the
vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its election
by the stockholders shall appoint an Executive Committee, a Trust Committee, an
Audit Committee and a Compensation Committee, and shall elect from its own
members a Chairman of the Board of Directors and a President who may be the same
person. The Board of Directors shall also elect at such meeting a Secretary and
a Treasurer, who may be the same person, may appoint at any time such other
committees and elect or appoint such other officers as it may deem advisable.
The Board of Directors may also elect at such meeting one or more Associate
Directors.
Section 11. The Board of Directors may at any time remove, with or without
cause, any member of any Committee appointed by it or any associate director or
officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
ARTICLE III
Committees
Section I. Executive Committee
(A) The Executive Committee shall be composed of not more than nine
members who shall be selected by the Board of Directors from its own members and
who
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shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the Board
of Directors when it is not in session to transact all business for and in
behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Executive
Committee or at the call of the Chairman of the Board of Directors. The majority
of its members shall be necessary to constitute a quorum for the transaction of
business. Special meetings of the Executive Committee may be held at any time
when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall be kept
and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient severity to
prevent the conduct and management of the affairs and business of the Company by
its directors and officers as contemplated by these By-Laws any two available
members of the Executive Committee as constituted immediately prior to such
disaster shall constitute a quorum of that Committee for the full conduct and
management of the affairs and business of the Company in accordance with the
provisions of Article III of these By-Laws; and if less than three members of
the Trust Committee is constituted immediately prior to such disaster shall be
available for the transaction of its business, such Executive Committee shall
also be empowered to exercise all of the powers reserved to the Trust Committee
under Article III Section 2 hereof. In the event of the unavailability, at such
time, of a minimum of two members of such Executive Committee, any three
available directors shall constitute the Executive Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the foregoing provisions of this Section. This By-Law shall be subject to
implementation by Resolutions of the Board of Directors presently existing or
hereafter passed from time to time for that purpose, and any provisions of these
By-Laws (other than this Section) and any resolutions which are contrary to the
provisions of this Section or to the provisions of any such implementary
Resolutions shall be suspended during such a disaster period until it shall be
determined by any interim Executive Committee acting under this section that it
shall be to the advantage of the Company to resume the conduct and management of
its affairs and business under all of the other provisions of these By-Laws.
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<PAGE>
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than thirteen
members who shall be selected by the Board of Directors, a majority of whom
shall be members of the Board of Directors and who shall hold office during the
pleasure of the Board.
(B) The Trust Committee shall have general supervision over the
Trust Department and the investment of trust funds, in all matters, however,
being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office of the
Company or elsewhere in its discretion at such times to be determined by a
majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be kept and
promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint Committees
and/or designate officers or employees of the Company to whom supervision over
the investment of trust funds may be delegated when the Trust Committee is not
in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members who shall
be selected by the Board of Directors from its own members, none of whom shall
be an officer of the Company, and shall hold office at the pleasure of the
Board.
(B) The Audit Committee shall have general supervision over the
Audit Division in all matters however subject to the approval of the Board of
Directors; it shall consider all matters brought to its attention by the officer
in charge of the Audit Division, review all reports of examination of the
Company made by any governmental agency or such independent auditor employed for
that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not more than
4
<PAGE>
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during the
pleasure of the Board.
(B) The Compensation Committee shall in general advise upon all
matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at any time
by the Chairman of the Compensation Committee, the Chairman of the Board of
Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected by the
Board of Directors as an associate director, to serve during the pleasure of the
Board.
(B) An associate director shall be entitled to attend all directors
meetings and participate in the discussion of all matters brought to the Board,
with the exception that he would have no right to vote. An associate director
will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absence or disqualified member.
ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the Board
of
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<PAGE>
Directors shall preside at all meetings of the Board of Directors at which the
Chairman of the Board shall not be present and shall have such further authority
and powers and shall perform such duties as the Board of Directors or the
Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining to
the office of the President conferred or imposed upon him by statute or assigned
to him by the Board of Directors in the absence of the Chairman of the Board the
President shall have the powers and duties of the Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however denominated
by the Board of Directors, who may at any time perform all the duties of the
Chairman of the Board of Directors and/or the President and such other powers
and duties as may from time to time be assigned to them by the Board of
Directors, the Executive Committee, the Chairman of the Board or the President
and by the officer in charge of the department or division to which they are
assigned.
Section 6. The Secretary shall attend to the giving of notice of meetings
of the stockholders and the Board of Directors, as well as the Committees
thereof, to the keeping of accurate minutes of all such meetings and to
recording the same in the minute books of the Company. In addition to the other
notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all assets
and liabilities of the Company. He shall be custodian of and responsible for all
monies, funds and valuables of the Company and for the keeping of proper records
of the evidence of property or indebtedness and of all the transactions of the
Company. He shall have general supervision of the expenditures of the Company
and shall report to the Board of Directors at each regular meeting of the
condition of the Company, and perform such other duties as may be assigned to
him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
6
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There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to all
Vice Presidents with such functional titles as shall be determined from time to
time by the Board of Directors, who shall ex officio hold the office Assistant
Secretary of this Company and who may perform such duties as may be prescribed
by the officer in charge of the department or division to whom they are
assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock shall
be recorded.
Section 2. Certificate of stock shall bear the signature of the President
or any Vice President, however denominated by the Board of Directors and
countersigned by the Secretary or Treasurer or an Assistant Secretary, and the
seal of the corporation shall be engraved thereon. Each certificate shall recite
that the stock represented thereby is transferrable only upon the books of the
Company by the holder thereof or his attorney, upon surrender of the certificate
properly endorsed. Any certificate of stock surrendered to the Company shall be
cancelled at the time of transfer, and before a new certificate or certificates
shall be issued in lieu thereof. Duplicate certificates of stock shall be issued
only upon giving such security as may be satisfactory to the Board of Directors
or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix in
advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of
7
<PAGE>
any dividend, or to any allotment or rights, or to exercise any rights in
respect of any change, conversion or exchange of capital stock, or in connection
with obtaining the consent of stockholders for any purpose, which record date
shall not be more than 60 nor less than 10 days proceeding the date of any
meeting of stockholders or the date for the payment of any dividend, or the date
for the allotment of rights, or the date when any change or conversion or
exchange of capital stock shall go into effect, or a date in connection with
obtaining such consent.
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words "Wilmington Trust Company"
within the inner circle the words "Wilmington, Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice President,
however denominated by the Board of Directors, shall have full power and
authority to enter into, make, sign, execute, acknowledge and/or deliver and the
Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as though
expressly authorized by the Board of Directors and/or the Executive Committee.
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<PAGE>
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company, other than
salaried officers of the Company, shall be paid such reasonable honoraria or
fees for attending meetings of the Board of Directors as the Board of Directors
may from time to time determine. Directors and associate directors who serve as
members of committees, other than salaried employees of the Company, shall be
paid such reasonable honoraria or fees for services as members of committees as
the Board of Directors shall from time to time determine and directors and
associate directors may be employed by the Company for such special services as
the Board of Directors may from time to time determine and shall be paid for
such special services so performed reasonable compensation as may be determined
by the Board of Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold harmless, to the
fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably
incurred by such person. The Corporation shall indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in defending any
proceeding in advance of its final disposition, provided, however, that the
payment of expenses incurred by a Director officer in his capacity as a Director
or officer in advance of the final disposition of the proceeding shall be made
only upon receipt of an undertaking by the Director or officer to repay all
amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses, under
this Article X is not paid in full within ninety days after a written claim
therefor has been received by the Corporation the claimant may file suit to
recover the unpaid amount of such claim and, if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such claim. In any such
action the Corporation shall have the burden of proving that the claimant was
not entitled to the requested indemnification of payment of expenses
9
<PAGE>
under applicable law.
(D) The rights conferred on any person by this Article X shall not
be exclusive of any other rights which such person may have or hereafter acquire
under any statute, provision of the Charter or Act of Incorporation, these
By-Laws, agreement, vote of stockholders or disinterested Directors or
otherwise.
(E) Any repeal or modification of the foregoing provisions of this
Article X shall not adversely affect any right or protection hereunder of any
person in respect of any act or omission occurring prior to the time of such
repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in whole or
in part, and any new By-Law or By-Laws adopted at any regular or special meeting
of the Board of Directors by a vote of the majority of all the members of the
Board of Directors then in office.
10
<PAGE>
EXHIBIT C
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended,
Wilmington Trust Company hereby consents that reports of examinations by
Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: July 1, 1997 By: /s/ Norma P. Closs
-----------------------------
Name: Norma P. Closs
Title: Vice President
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks with
state publication requirements. It has not been approved by any state banking
authorities. Refer to your appropriate state banking authorities for your state
publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- ---------------------------------------------------------------
Name of Bank City
in the State of DELAWARE, at the close of business on March 31, 1997.
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins............ 181,744
Interest-bearing balances...................................... 0
Held-to-maturity securities........................................ 445,954
Available-for-sale securities...................................... 767,337
Federal funds sold and securities purchased under agreements
to resell ....................................................... 86,900
Loans and lease financing receivables:
Loans and leases, net of unearned income....................... 3,685,616
LESS: Allowance for loan and lease losses...................... 52,478
LESS: Allocated transfer risk reserve ......................... 0
Loans and leases, net of unearned income, allowance, and
reserve ..................................................... 3,633,138
Assets held in trading accounts.................................... 0
Premises and fixed assets (including capitalized leases)........... 94,513
Other real estate owned............................................ 3,702
Investments in unconsolidated subsidiaries and associated companies 20
Customers' liability to this bank on acceptances outstanding....... 0
Intangible assets.................................................. 4,012
Other assets....................................................... 103,524
Total assets....................................................... 5,320,844
CONTINUED ON NEXT PAGE
<PAGE>
LIABILITIES
Deposits:
In domestic offices................................................ 3,618,174
Noninterest-bearing ........................................... 784,267
Interest-bearing .............................................. 2,833,907
Federal funds purchased and Securities sold under agreements to
repurchase ...................................................... 293,862
Demand notes issued to the U.S. Treasury........................... 64,550
Trading liabilities (from Schedule RC-D)........................... 0
Other borrowed money:.............................................. ///////
With original maturity of one year or less..................... 774,000
With original maturity of more than one year................... 43,000
Bank's liability on acceptances executed and outstanding........... 0
Subordinated notes and debentures.................................. 0
Other liabilities (from Schedule RC-G)............................. 95,672
Total liabilities.................................................. 4,889,258
EQUITY CAPITAL
Perpetual preferred stock and related surplus...................... 0
Common Stock....................................................... 500
Surplus (exclude all surplus related to preferred stock)........... 62,118
Undivided profits and capital reserves............................. 371,107
Net unrealized holding gains (losses) on available-for-sale
securities ...................................................... (2,139)
Total equity capital............................................... 431,586
Total liabilities, limited-life preferred stock, and equity
capital ......................................................... 5,320,844
Thousands of dollars
2
<PAGE>
EXHIBIT 25(h)
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
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) ___
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(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 of incorporation) (I.R.S. employer identification no.)
2801 Highway 280 South
Birmingham, Alabama 35233
(Address of principal executive offices) (Zip Code)
Preferred Securities of PLC Capital Trust IV
(Title of the indenture securities)
================================================================================
<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.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the trustee
and upon information furnished by the obligor, the obligor is not an
affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes the
certificate of authority of Wilmington Trust Company to commence
business and the authorization of Wilmington Trust Company to
exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b) of
Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 1st day
of July, 1997.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Patricia A. Evans By:/s/ Norma P. Closs
--------------------- -------------------
Assistant Secretary Name: Norma P. Closs
Title: Vice President
2
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EXHIBIT A
AMENDED CHARTER
Wilmington Trust Company
Wilmington, Delaware
As existing on May 9, 1987
<PAGE>
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of the General
Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware
Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which
company was changed to "WILMINGTON TRUST COMPANY" by an amendment filed in the
Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act
of Incorporation of which company has been from time to time amended and changed
by merger agreements pursuant to the corporation law for state banks and trust
companies of the State of Delaware, does hereby alter and amend its Charter or
Act of Incorporation so that the same as so altered and amended shall in its
entirety read as follows:
FIRST: - The name of this corporation is WILMINGTON TRUST COMPANY.
SECOND: - The location of its principal office in the State of Delaware is
at Rodney Square North, in the City of Wilmington, County of New Castle;
the name of its resident agent is WILMINGTON TRUST COMPANY whose address
is Rodney Square North, in said City. In addition to such principal
office, the said corporation maintains and operates branch offices in the
City of Newark, New Castle County, Delaware, the Town of Newport, New
Castle County, Delaware, at Claymont, New Castle County, Delaware, at
Greenville, New Castle County Delaware, and at Milford Cross Roads, New
Castle County, Delaware, and shall be empowered to open, maintain and
operate branch offices at Ninth and Shipley Streets, 418 Delaware Avenue,
2120 Market Street, and 3605 Market Street, all in the City of Wilmington,
New Castle County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or agencies
of the government of the State of Delaware empowered to confer such
authority.
THIRD: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation are
to do any or all of the things herein mentioned as fully and to the same
extent as natural persons might or could do and in any part of the world,
viz.:
(1) To sue and be sued, complain and defend in any Court of law or
equity and to make and use a common seal, and alter the seal at
pleasure, to hold, purchase, convey, mortgage or otherwise deal in
real and personal estate and property, and to appoint such officers
and agents as the business of the
<PAGE>
Corporation shall require, to make by-laws not inconsistent with the
Constitution or laws of the United States or of this State, to
discount bills, notes or other evidences of debt, to receive
deposits of money, or securities for money, to buy gold and silver
bullion and foreign coins, to buy and sell bills of exchange, and
generally to use, exercise and enjoy all the powers, rights,
privileges and franchises incident to a corporation which are proper
or necessary for the transaction of the business of the Corporation
hereby created.
(2) To insure titles to real and personal property, or any estate or
interests therein, and to guarantee the holder of such property,
real or personal, against any claim or claims, adverse to his
interest therein, and to prepare and give certificates of title for
any lands or premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every description,
and to carry on the business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate,
deeds, bonds and any and all other personal property of every sort
and kind, from executors, administrators, guardians, public
officers, courts, receivers, assignees, trustees, and from all
fiduciaries, and from all other persons and individuals, and from
all corporations whether state, municipal, corporate or private, and
to rent boxes, safes, vaults and other receptacles for such
property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or underwriting
the stock, bonds or other obligations of any corporation,
association, state or municipality, and may receive and manage any
sinking fund therefor on such terms as may be agreed upon between
the two parties, and in like manner may act as Treasurer of any
corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body politic,
corporation, association or person, either alone or in conjunction
with any other person or persons, corporation or corporations.
2
<PAGE>
(8) To guarantee the validity, performance or effect of any contract
or agreement, and the fidelity of persons holding places of
responsibility or trust; to become surety for any person, or
persons, for the faithful performance of any trust, office, duty,
contract or agreement, either by itself or in conjunction with any
other person, or persons, corporation, or corporations, or in like
manner become surety upon any bond, recognizance, obligation,
judgment, suit, order, or decree to be entered in any court of
record within the State of Delaware or elsewhere, or which may now
or hereafter be required by any law, judge, officer or court in the
State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other trust
capacity in the receiving, holding, managing, and disposing of any
and all estates and property, real, personal or mixed, and to be
appointed as such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator, guardian
or bailee by any persons, corporations, court, officer, or
authority, in the State of Delaware or elsewhere; and whenever this
Corporation is so appointed by any person, corporation, court,
officer or authority such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator, guardian,
bailee, or in any other trust capacity, it shall not be required to
give bond with surety, but its capital stock shall be taken and held
as security for the performance of the duties devolving upon it by
such appointment.
(10) And for its care, management and trouble, and the exercise of
any of its powers hereby given, or for the performance of any of the
duties which it may undertake or be called upon to perform, or for
the assumption of any responsibility the said Corporation may be
entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without the
State of Delaware, or of the Government of the United States, or of
any state, territory, colony, or possession thereof, or of any
foreign government or country; to receive, collect, receipt for, and
dispose of interest, dividends and income upon and from any of the
bonds, mortgages, debentures, notes, shares of capital stock,
securities, obligations, contracts, evidences of indebtedness and
other property held and owned by it, and to exercise in respect of
all such bonds, mortgages, debentures, notes, shares of capital
stock, securities, obligations, contracts, evidences of indebtedness
and other property, any and all the rights, powers and privileges of
individual
3
<PAGE>
owners thereof, including the right to vote thereon; to invest and
deal in and with any of the moneys of the Corporation upon such
securities and in such manner as it may think fit and proper, and
from time to time to vary or realize such investments; to issue
bonds and secure the same by pledges or deeds of trust or mortgages
of or upon the whole or any part of the property held or owned by
the Corporation, and to sell and pledge such bonds, as and when the
Board of Directors shall determine, and in the promotion of its said
corporate business of investment and to the extent authorized by
law, to lease, purchase, hold, sell, assign, transfer, pledge,
mortgage and convey real and personal property of any name and
nature and any estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred by
the laws of the State of Delaware, it is hereby expressly provided that
the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of the
world.
(2) To acquire the good will, rights, property and franchises and to
undertake the whole or any part of the assets and liabilities of any
person, firm, association or corporation, and to pay for the same in
cash, stock of this Corporation, bonds or otherwise; to hold or in
any manner to dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any part of
any business so acquired, and to exercise all the powers necessary
or convenient in and about the conduct and management of such
business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose
of property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every
kind with any person, firm, association or corporation, and, without
limit as to amount, to draw, make, accept, endorse, discount,
execute and issue promissory notes, drafts, bills of exchange,
warrants, bonds, debentures, and other negotiable or transferable
instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same extent as
natural persons might or could do, to purchase or otherwise acquire,
to hold, own, to mortgage, sell, convey or otherwise dispose of,
real and personal property, of every class and description, in any
State, District, Territory or Colony of the United States, and in
any foreign country or place.
4
<PAGE>
(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except
where otherwise expressed in said paragraph) be nowise limited or
restricted by reference to or inference from the terms of any other
clause of this or any other paragraph in this charter, but that the
objects, purposes and powers specified in each of the clauses of
this paragraph shall be regarded as independent objects, purposes
and powers.
FOURTH: - (a) The total number of shares of all classes of stock which the
Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or
more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares of
any one series of Preferred Stock shall be alike in every particular,
except that there may be different dates from which dividends, if any,
thereon shall be cumulative, if made cumulative. The voting powers and the
preferences and relative, participating, optional and other special rights
of each such series, and the qualifications, limitations or restrictions
thereof, if any, may differ from those of any and all other series at any
time outstanding; and, subject to the provisions of subparagraph 1 of
Paragraph (c) of this Article FOURTH, the Board of Directors of the
Corporation is hereby expressly granted authority to fix by resolution or
resolutions adopted prior to the issuance of any shares of a particular
series of Preferred Stock, the voting powers and the designations,
preferences and relative, optional and other special rights, and the
qualifications, limitations and restrictions of such series, including,
but without limiting the generality of the foregoing, the following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number may
be increased (except where otherwise provided by the Board of
Directors) or decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of the Board of
Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series shall be
paid, the extent of the preference or relation, if any, of such
dividends to the dividends payable on any other class or classes, or
series of the same or other class of
5
<PAGE>
stock and whether such dividends shall be cumulative or
non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares of
any other class or classes or of any series of the same or any other
class or classes of stock of the Corporation and the terms and
conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject
to redemption, and the redemption price or prices and the time or
times at which, and the terms and conditions on which, Preferred
Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such
series upon the voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase account,
if any, to be provided for the Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of the
foregoing include the right, voting as a series or by itself or
together with other series of Preferred Stock or all series of
Preferred Stock as a class, to elect one or more directors of the
Corporation if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of Directors may
determine.
(c) (1) After the requirements with respect to preferential dividends on
the Preferred Stock (fixed in accordance with the provisions of section
(b) of this Article FOURTH), if any, shall have been met and after the
Corporation shall have complied with all the requirements, if any, with
respect to the setting aside of sums as sinking funds or redemption or
purchase accounts (fixed in accordance with the provisions of section (b)
of this Article FOURTH), and subject further to any conditions which may
be fixed in accordance with the provisions of section (b) of this Article
FOURTH, then and not otherwise the holders of Common Stock shall be
entitled to receive such dividends as may be declared from time to time by
the Board of Directors.
(2) After distribution in full of the preferential amount, if any,
(fixed in accordance with the provisions of section (b) of this
Article FOURTH), to be distributed to the holders of Preferred Stock
in the event of voluntary or involuntary liquidation, distribution
or sale of assets, dissolution or winding-up, of the Corporation,
the holders of the Common Stock shall be entitled to
6
<PAGE>
receive all of the remaining assets of the Corporation, tangible and
intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares of Common
Stock held by them respectively.
(3) Except as may otherwise be required by law or by the provisions
of such resolution or resolutions as may be adopted by the Board of
Directors pursuant to section (b) of this Article FOURTH, each
holder of Common Stock shall have one vote in respect of each share
of Common Stock held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or
series of stock or of other securities of the Corporation shall have any
preemptive right to purchase or subscribe for any unissued stock of any
class or series or any additional shares of any class or series to be
issued by reason of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series, or
carrying any right to purchase stock of any class or series, but any such
unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for stock,
or carrying any right to purchase stock, may be issued and disposed of
pursuant to resolution of the Board of Directors to such persons, firms,
corporations or associations, whether such holders or others, and upon
such terms as may be deemed advisable by the Board of Directors in the
exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and rights
of each other series of Preferred Stock shall, in each case, be as fixed
from time to time by the Board of Directors in the resolution or
resolutions adopted pursuant to authority granted in section (b) of this
Article FOURTH and the consent, by class or series vote or otherwise, of
the holders of such of the series of Preferred Stock as are from time to
time outstanding shall not be required for the issuance by the Board of
Directors of any other series of Preferred Stock whether or not the
powers, preferences and rights of such other series shall be fixed by the
Board of Directors as senior to, or on a parity with, the powers,
preferences and rights of such outstanding series, or any of them;
provided, however, that the Board of Directors may provide in the
resolution or resolutions as to any series of Preferred Stock adopted
pursuant to section (b) of this Article FOURTH that the consent of the
holders of a majority (or such greater proportion as shall be therein
fixed) of the outstanding shares of such series voting thereon shall be
required for the issuance of any or all other series of Preferred Stock.
7
<PAGE>
(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of Directors
of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred Stock
may, without a class or series vote, be increased or decreased from time
to time by the affirmative vote of the holders of a majority of the stock
of the Corporation entitled to vote thereon.
FIFTH: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more than
twenty-five as fixed from time to time by vote of a majority of the whole
Board, provided, however, that the number of directors shall not be
reduced so as to shorten the term of any director at the time in office,
and provided further, that the number of directors constituting the whole
Board shall be twenty-four until otherwise fixed by a majority of the
whole Board.
(b) The Board of Directors shall be divided into three classes, as nearly
equal in number as the then total number of directors constituting the
whole Board permits, with the term of office of one class expiring each
year. At the annual meeting of stockholders in 1982, directors of the
first class shall be elected to hold office for a term expiring at the
next succeeding annual meeting, directors of the second class shall be
elected to hold office for a term expiring at the second succeeding annual
meeting and directors of the third class shall be elected to hold office
for a term expiring at the third succeeding annual meeting. Any vacancies
in the Board of Directors for any reason, and any newly created
directorships resulting from any increase in the directors, may be filled
by the Board of Directors, acting by a majority of the directors then in
office, although less than a quorum, and any directors so chosen shall
hold office until the next annual election of directors. At such election,
the stockholders shall elect a successor to such director to hold office
until the next election of the class for which such director shall have
been chosen and until his successor shall be elected and qualified. No
decrease in the number of directors shall shorten the term of any
incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding the
fact that some lesser percentage may be specified by law, this Charter or
Act of Incorporation or the By-Laws of the Corporation), any director or
the entire Board of Directors of the
8
<PAGE>
Corporation may be removed at any time without cause, but only by the
affirmative vote of the holders of two-thirds or more of the outstanding
shares of capital stock of the Corporation entitled to vote generally in
the election of directors (considered for this purpose as one class) cast
at a meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing, delivered
or mailed by first class United States mail, postage prepaid, to the
Secretary of the Corporation not less than 14 days nor more than 50 days
prior to any meeting of the stockholders called for the election of
directors; provided, however, that if less than 21 days' notice of the
meeting is given to stockholders, such written notice shall be delivered
or mailed, as prescribed, to the Secretary of the Corporation not later
than the close of the seventh day following the day on which notice of the
meeting was mailed to stockholders. Notice of nominations which are
proposed by the Board of Directors shall be given by the Chairman on
behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee proposed
in such notice, (ii) the principal occupation or employment of such
nominee and (iii) the number of shares of stock of the Corporation which
are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with
the foregoing procedure, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, and the power of stockholders to consent in writing, without a
meeting, to the taking of any action is specifically denied.
SIXTH: - The Directors shall choose such officers, agent and servants as
may be provided in the By-Laws as they may from time to time find
necessary or proper.
SEVENTH: - The Corporation hereby created is hereby given the same powers,
rights and privileges as may be conferred upon corporations organized
under the Act entitled "An Act Providing a General Corporation Law",
approved March 10, 1899, as from time to time amended.
EIGHTH: - This Act shall be deemed and taken to be a private Act.
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NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a majority of the
whole Board, may designate any of their number to constitute an Executive
Committee, which Committee, to the extent provided in said resolution, or
in the By-Laws of the Company, shall have and may exercise all of the
powers of the Board of Directors in the management of the business and
affairs of the Corporation, and shall have power to authorize the seal of
the Corporation to be affixed to all papers which may require it.
ELEVENTH: - The private property of the stockholders shall not be liable
for the payment of corporate debts to any extent whatever.
TWELFTH: - The Corporation may transact business in any part of the world.
THIRTEENTH: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by a
vote of the majority of the entire Board. The stockholders may make, alter
or repeal any By-Law whether or not adopted by them, provided however,
that any such additional By-Laws, alterations or repeal may be adopted
only by the affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this purpose as one
class).
FOURTEENTH: - Meetings of the Directors may be held outside of the State
of Delaware at such places as may be from time to time designated by the
Board, and the Directors may keep the books of the Company outside of the
State of Delaware at such places as may be from time to time designated by
them.
FIFTEENTH: - (a) In addition to any affirmative vote required by law, and
except as otherwise expressly provided in sections (b) and (c) of this
Article FIFTEENTH:
(A) any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with or into (i) any Interested Stockholder
(as hereinafter defined) or (ii) any other corporation (whether or
not itself an Interested Stockholder), which, after such merger or
consolidation, would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions)
to or with any Interested Stockholder or any Affiliate of any
Interested Stockholder of any assets of the Corporation or any
Subsidiary having an aggregate fair market value of $1,000,000 or
more, or
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(C) the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of related transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Stockholder or any Affiliate of any Interested Stockholder in
exchange for cash, securities or other property (or a combination
thereof) having an aggregate fair market value of $1,000,000 or
more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
similar transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect, directly
or indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible securities
of the Corporation or any Subsidiary which is directly or indirectly
owned by any Interested Stockholder, or any Affiliate of any
Interested Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article FIFTEENTH as one class ("Voting Shares"). Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this Article
FIFTEENTH shall mean any transaction which is referred to any
one or more of clauses (A) through (E) of paragraph 1 of the
section (a).
(b) The provisions of section (a) of this Article FIFTEENTH shall
not be applicable to any particular business combination and such
business combination shall require only such affirmative vote as is
required by law and any other provisions of the Charter or Act of
Incorporation of By-Laws if such business combination has been
approved by a majority of the whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary) who
or which as of the record date for the determination of stockholders
entitled to notice of and to vote on
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such business combination, or immediately prior to the consummation of any
such transaction:
(A) is the beneficial owner, directly or indirectly, of more than
10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within two
years prior thereto was the beneficial owner, directly or
indirectly, of not less than 10% of the then outstanding voting
Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within two
years prior thereto beneficially owned by any Interested
Stockholder, and such assignment or succession shall have occurred
in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities Act
of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates (as
hereafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has (i)
the right to acquire (whether such right is exercisable immediately
or only after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or (ii)
the right to vote pursuant to any agreement, arrangement or
understanding, or
(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any other
Voting Shares which may be issuable pursuant to any agreement, or upon
exercise of conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings given
those terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on December 31, 1981.
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(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as in effect in
December 31, 1981) is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Investment
Stockholder set forth in paragraph (2) of this section (c), the term
"Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article FIFTEENTH on the basis of
information known to them, (1) the number of Voting Shares
beneficially owned by any person (2) whether a person is an
Affiliate or Associate of another, (3) whether a person has an
agreement, arrangement or understanding with another as to the
matters referred to in paragraph (3) of section (c), or (4) whether
the assets subject to any business combination or the consideration
received for the issuance or transfer of securities by the
Corporation, or any Subsidiary has an aggregate fair market value of
$1,000,000 or more.
(e) Nothing contained in this Article Fifteenth shall be construed
to relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
SIXTEENTH: Notwithstanding any other provision of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and in addition to any
other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of at
least two-thirds of the outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) shall be required to amend,
alter or repeal any provision of Articles FIFTH, THIRTEENTH, FIFTEENTH or
SIXTEENTH of this Charter or Act of Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall not
adversely affect any right or protection of a Director of the
Corporation existing hereunder with respect to any act or omission
occurring prior to the time of such repeal or modification."
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EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
<PAGE>
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. The Annual Meeting of Stockholders shall be held on the third
Thursday in April each year at the principal office at the Company or at such
other date, time, or place as may be designated by resolution by the Board of
Directors.
Section 2. Special meetings of all stockholders may be called at any time
by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given by
mailing to each stockholder at least ten (10) days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the Company
issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each share of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
DIRECTORS
Section 1. The number and classification of the Board of Directors shall
be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72) years
shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for three
years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed and
conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its
<PAGE>
members, or at the call of the Chairman of the Board of Directors or the
President.
Section 6. Special meetings of the Board of Directors may be called at any
time by the Chairman of the Board of Directors or by the President, and shall be
called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of any
special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal, inability to
act, or disqualification of any director, the Board of Directors, although less
than a quorum, shall have the right to elect the successor who shall hold office
for the remainder of the full term of the class of directors in which the
vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its election
by the stockholders shall appoint an Executive Committee, a Trust Committee, an
Audit Committee and a Compensation Committee, and shall elect from its own
members a Chairman of the Board of Directors and a President who may be the same
person. The Board of Directors shall also elect at such meeting a Secretary and
a Treasurer, who may be the same person, may appoint at any time such other
committees and elect or appoint such other officers as it may deem advisable.
The Board of Directors may also elect at such meeting one or more Associate
Directors.
Section 11. The Board of Directors may at any time remove, with or without
cause, any member of any Committee appointed by it or any associate director or
officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
ARTICLE III
COMMITTEES
Section I. Executive Committee
(A) The Executive Committee shall be composed of not more than nine
members who shall be selected by the Board of Directors from its own members and
who
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shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the Board
of Directors when it is not in session to transact all business for and in
behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Executive
Committee or at the call of the Chairman of the Board of Directors. The majority
of its members shall be necessary to constitute a quorum for the transaction of
business. Special meetings of the Executive Committee may be held at any time
when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall be kept
and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient severity to
prevent the conduct and management of the affairs and business of the Company by
its directors and officers as contemplated by these By-Laws any two available
members of the Executive Committee as constituted immediately prior to such
disaster shall constitute a quorum of that Committee for the full conduct and
management of the affairs and business of the Company in accordance with the
provisions of Article III of these By-Laws; and if less than three members of
the Trust Committee is constituted immediately prior to such disaster shall be
available for the transaction of its business, such Executive Committee shall
also be empowered to exercise all of the powers reserved to the Trust Committee
under Article III Section 2 hereof. In the event of the unavailability, at such
time, of a minimum of two members of such Executive Committee, any three
available directors shall constitute the Executive Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the foregoing provisions of this Section. This By-Law shall be subject to
implementation by Resolutions of the Board of Directors presently existing or
hereafter passed from time to time for that purpose, and any provisions of these
By-Laws (other than this Section) and any resolutions which are contrary to the
provisions of this Section or to the provisions of any such implementary
Resolutions shall be suspended during such a disaster period until it shall be
determined by any interim Executive Committee acting under this section that it
shall be to the advantage of the Company to resume the conduct and management of
its affairs and business under all of the other provisions of these By-Laws.
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Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than thirteen
members who shall be selected by the Board of Directors, a majority of whom
shall be members of the Board of Directors and who shall hold office during the
pleasure of the Board.
(B) The Trust Committee shall have general supervision over the
Trust Department and the investment of trust funds, in all matters, however,
being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office of the
Company or elsewhere in its discretion at such times to be determined by a
majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be kept and
promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint Committees
and/or designate officers or employees of the Company to whom supervision over
the investment of trust funds may be delegated when the Trust Committee is not
in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members who shall
be selected by the Board of Directors from its own members, none of whom shall
be an officer of the Company, and shall hold office at the pleasure of the
Board.
(B) The Audit Committee shall have general supervision over the
Audit Division in all matters however subject to the approval of the Board of
Directors; it shall consider all matters brought to its attention by the officer
in charge of the Audit Division, review all reports of examination of the
Company made by any governmental agency or such independent auditor employed for
that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not more than
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five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during the
pleasure of the Board.
(B) The Compensation Committee shall in general advise upon all
matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at any time
by the Chairman of the Compensation Committee, the Chairman of the Board of
Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected by the
Board of Directors as an associate director, to serve during the pleasure of the
Board.
(B) An associate director shall be entitled to attend all directors
meetings and participate in the discussion of all matters brought to the Board,
with the exception that he would have no right to vote. An associate director
will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absence or disqualified member.
ARTICLE IV
OFFICERS
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the Board
of
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Directors shall preside at all meetings of the Board of Directors at which the
Chairman of the Board shall not be present and shall have such further authority
and powers and shall perform such duties as the Board of Directors or the
Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining to
the office of the President conferred or imposed upon him by statute or assigned
to him by the Board of Directors in the absence of the Chairman of the Board the
President shall have the powers and duties of the Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however denominated
by the Board of Directors, who may at any time perform all the duties of the
Chairman of the Board of Directors and/or the President and such other powers
and duties as may from time to time be assigned to them by the Board of
Directors, the Executive Committee, the Chairman of the Board or the President
and by the officer in charge of the department or division to which they are
assigned.
Section 6. The Secretary shall attend to the giving of notice of meetings
of the stockholders and the Board of Directors, as well as the Committees
thereof, to the keeping of accurate minutes of all such meetings and to
recording the same in the minute books of the Company. In addition to the other
notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all assets
and liabilities of the Company. He shall be custodian of and responsible for all
monies, funds and valuables of the Company and for the keeping of proper records
of the evidence of property or indebtedness and of all the transactions of the
Company. He shall have general supervision of the expenditures of the Company
and shall report to the Board of Directors at each regular meeting of the
condition of the Company, and perform such other duties as may be assigned to
him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
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There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to all
Vice Presidents with such functional titles as shall be determined from time to
time by the Board of Directors, who shall ex officio hold the office Assistant
Secretary of this Company and who may perform such duties as may be prescribed
by the officer in charge of the department or division to whom they are
assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
STOCK AND STOCK CERTIFICATES
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock shall
be recorded.
Section 2. Certificate of stock shall bear the signature of the President
or any Vice President, however denominated by the Board of Directors and
countersigned by the Secretary or Treasurer or an Assistant Secretary, and the
seal of the corporation shall be engraved thereon. Each certificate shall recite
that the stock represented thereby is transferrable only upon the books of the
Company by the holder thereof or his attorney, upon surrender of the certificate
properly endorsed. Any certificate of stock surrendered to the Company shall be
cancelled at the time of transfer, and before a new certificate or certificates
shall be issued in lieu thereof. Duplicate certificates of stock shall be issued
only upon giving such security as may be satisfactory to the Board of Directors
or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix in
advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of
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any dividend, or to any allotment or rights, or to exercise any rights in
respect of any change, conversion or exchange of capital stock, or in connection
with obtaining the consent of stockholders for any purpose, which record date
shall not be more than 60 nor less than 10 days proceeding the date of any
meeting of stockholders or the date for the payment of any dividend, or the date
for the allotment of rights, or the date when any change or conversion or
exchange of capital stock shall go into effect, or a date in connection with
obtaining such consent.
ARTICLE VI
SEAL
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words "Wilmington Trust Company"
within the inner circle the words "Wilmington, Delaware."
ARTICLE VII
FISCAL YEAR
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
EXECUTION OF INSTRUMENTS OF THE COMPANY
Section 1. The Chairman of the Board, the President or any Vice President,
however denominated by the Board of Directors, shall have full power and
authority to enter into, make, sign, execute, acknowledge and/or deliver and the
Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as though
expressly authorized by the Board of Directors and/or the Executive Committee.
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ARTICLE IX
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Section 1. Directors and associate directors of the Company, other than
salaried officers of the Company, shall be paid such reasonable honoraria or
fees for attending meetings of the Board of Directors as the Board of Directors
may from time to time determine. Directors and associate directors who serve as
members of committees, other than salaried employees of the Company, shall be
paid such reasonable honoraria or fees for services as members of committees as
the Board of Directors shall from time to time determine and directors and
associate directors may be employed by the Company for such special services as
the Board of Directors may from time to time determine and shall be paid for
such special services so performed reasonable compensation as may be determined
by the Board of Directors.
ARTICLE X
INDEMNIFICATION
Section 1. (A) The Corporation shall indemnify and hold harmless, to the
fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably
incurred by such person. The Corporation shall indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in defending
any proceeding in advance of its final disposition, provided, however, that
the payment of expenses incurred by a Director or officer in his capacity as
a Director or officer in advance of the final disposition of the proceeding
shall be made only upon receipt of an undertaking by the Director or officer
to repay all amounts advanced if it should be ultimately determined that the
Director or officer is not entitled to be indemnified under this Article or
otherwise.
(C) If a claim for indemnification or payment of expenses, under
this Article X is not paid in full within ninety days after a written claim
therefor has been received by the Corporation the claimant may file suit to
recover the unpaid amount of such claim and, if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such claim. In any such
action the Corporation shall have the burden of proving that the claimant was
not entitled to the requested indemnification of payment of expenses
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under applicable law.
(D) The rights conferred on any person by this Article X shall not
be exclusive of any other rights which such person may have or hereafter acquire
under any statute, provision of the Charter or Act of Incorporation, these
By-Laws, agreement, vote of stockholders or disinterested Directors or
otherwise.
(E) Any repeal or modification of the foregoing provisions of this
Article X shall not adversely affect any right or protection hereunder of any
person in respect of any act or omission occurring prior to the time of such
repeal or modification.
ARTICLE XI
AMENDMENTS TO THE BY-LAWS
Section 1. These By-Laws may be altered, amended or repealed, in whole or
in part, and any new By-Law or By-Laws adopted at any regular or special meeting
of the Board of Directors by a vote of the majority of all the members of the
Board of Directors then in office.
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EXHIBIT C
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended,
Wilmington Trust Company hereby consents that reports of examinations by
Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: July 1, 1997 By: /s/ Norma P. Closs
-----------------------------
Name: Norma P. Closs
Title: Vice President
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EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks with
state publication requirements. It has not been approved by any state banking
authorities. Refer to your appropriate state banking authorities for your state
publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
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Name of Bank City
in the State of DELAWARE, at the close of business on March 31, 1997.
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins............ 181,744
Interest-bearing balances...................................... 0
Held-to-maturity securities........................................ 445,954
Available-for-sale securities...................................... 767,337
Federal funds sold and securities purchased under agreements
to resell ....................................................... 86,900
Loans and lease financing receivables:
Loans and leases, net of unearned income....................... 3,685,616
LESS: Allowance for loan and lease losses...................... 52,478
LESS: Allocated transfer risk reserve ......................... 0
Loans and leases, net of unearned income, allowance, and
reserve ..................................................... 3,633,138
Assets held in trading accounts.................................... 0
Premises and fixed assets (including capitalized leases)........... 94,513
Other real estate owned............................................ 3,702
Investments in unconsolidated subsidiaries and
associated companies............................................. 20
Customers' liability to this bank on acceptances outstanding....... 0
Intangible assets.................................................. 4,012
Other assets....................................................... 103,524
Total assets....................................................... 5,320,844
CONTINUED ON NEXT PAGE
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LIABILITIES
Deposits:
In domestic offices................................................ 3,618,174
Noninterest-bearing ........................................... 784,267
Interest-bearing .............................................. 2,833,907
Federal funds purchased and Securities sold under agreements to
repurchase ...................................................... 293,862
Demand notes issued to the U.S. Treasury........................... 64,550
Trading liabilities (from Schedule RC-D)........................... 0
Other borrowed money:.............................................. ///////
With original maturity of one year or less..................... 774,000
With original maturity of more than one year................... 43,000
Bank's liability on acceptances executed and outstanding........... 0
Subordinated notes and debentures.................................. 0
Other liabilities (from Schedule RC-G)............................. 95,672
Total liabilities.................................................. 4,889,258
EQUITY CAPITAL
Perpetual preferred stock and related surplus...................... 0
Common Stock....................................................... 500
Surplus (exclude all surplus related to preferred stock)........... 62,118
Undivided profits and capital reserves............................. 371,107
Net unrealized holding gains (losses) on available-for-sale
securities ...................................................... (2,139)
Total equity capital............................................... 431,586
Total liabilities, limited-life preferred stock, and equity
capital ......................................................... 5,320,844
Thousands of dollars
2
