<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 16, 1999
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 III DELAWARE 72-6182543
PLC CAPITAL TRUST IV DELAWARE 72-6182544
</TABLE>
<TABLE>
<S> <C> <C>
(Exact name of registrant (State or other jurisdiction (I.R.S. Employer
as specified in its charter) of Identification
incorporation or No.)
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. / /
------------------------
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>
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED 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
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)... $500,000,000 100% $500,000,000 $139,000
</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
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 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 Guarantees 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.
<PAGE>
SUBJECT TO COMPLETION, DATED JUNE 16, 1999
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
<PAGE>
PROSPECTUS
$500,000,000
[LOGO]
PROTECTIVE LIFE CORPORATION
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
STOCK PURCHASE CONTRACTS
STOCK PURCHASE UNITS
PLC CAPITAL TRUST III
PLC CAPITAL TRUST IV
PREFERRED SECURITIES
GUARANTEED TO THE EXTENT SET FORTH IN THIS DOCUMENT BY
PROTECTIVE LIFE CORPORATION
Protective Life Corporation and PLC Capital Trust III and PLC Capital Trust
IV may offer up to $500,000,000 of the securities listed above from time to
time. The prospectus contains general information about these securities.
When Protective, PLC Capital Trust III or PLC Capital Trust IV offer
securities, we will provide you with a prospectus supplement containing the
specific terms of these securities. You should read this prospectus and any
prospectus supplement carefully before you invest.
INVESTING IN THESE SECURITIES INVOLVES RISKS. CONSIDER CAREFULLY THE RISK
FACTORS BEGINNING ON PAGE 2 OF THIS PROSPECTUS.
Protective, PLC Capital Trust III or PLC Capital Trust IV may offer
securities through underwriting syndicates managed or co-managed by one or more
underwriters, or directly to purchasers. The prospectus supplement for each
offering of securities will describe in detail the plan of distribution for that
offering. For general information about the distribution of securities offered,
please see "Plan of Distribution" in this prospectus.
Protective's common stock is listed on the New York Stock Exchange under the
trading symbol "PL".
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED THESE SECURITIES OR DETERMINED THAT THIS PROSPECTUS IS
ACCURATE OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
The date of this prospectus is June , 1999
<PAGE>
WHAT YOU SHOULD KNOW ABOUT THE PROSPECTUS
You should rely only on the information contained or incorporated by
reference in this prospectus. We have not authorized anyone to provide you with
different information. If anyone provides you with different or inconsistent
information, you should not rely on it. We are not making an offer to sell these
securities in any jurisdiction where the offer or sale is not permitted.
You should assume that the information in this prospectus is accurate as of
the date of the prospectus. Our business, financial condition, results of
operations and prospects may have changed since that date.
------------------------
TABLE OF CONTENTS
PROSPECTUS
<TABLE>
<S> <C>
Where You Can Find More Information.................................................... 1
Incorporation of Information We File With the SEC...................................... 1
Forward-Looking Statements............................................................. 2
Risk Factors........................................................................... 2
Protective Life Corporation............................................................ 6
The PLC Capital Trusts................................................................. 6
Use of Proceeds........................................................................ 7
Consolidated Earnings Ratios........................................................... 7
Description of Debt Securities of Protective........................................... 8
Description of Capital Stock of Protective............................................. 19
Description of Preferred Stock of Protective........................................... 20
Description of Common Stock of Protective.............................................. 20
Description of Preferred Securities of the PLC Capital Trusts.......................... 27
Description of the Preferred Securities Guarantees..................................... 29
Effect of Obligations Under the Subordinated Debt Securities and the Preferred
Securities Guarantees................................................................ 32
Description of Stock Purchase Contracts and Stock Purchase Units....................... 33
Plan of Distribution................................................................... 34
Legal Matters.......................................................................... 35
Experts................................................................................ 35
</TABLE>
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
Protective files reports, proxy statements and other information with the
Securities and Exchange Commission. Our SEC filings are available over the
Internet at the SEC's website at http://www.sec.gov. You may also read and copy
any document we file at the SEC's public reference rooms in Washington, DC, New
York, New York and Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for
more information on the public reference rooms and their copy charges. You may
also inspect our SEC reports and other information at the New York Stock
Exchange, 20 Broad Street, New York, New York 10005.
Protective and the PLC Capital Trusts have filed a registration statement on
Form S-3 with the SEC covering these securities. For more information on
Protective, the PLC Capital Trusts and the securities, you should refer to our
registration statement which includes this prospectus and its exhibits. This
prospectus summarizes material provisions of the contracts and other documents
that we refer you to. Because the prospectus may not contain all the information
that you may find important, you should review the full text of these documents.
We have included copies of these documents as exhibits to our registration
statement.
INCORPORATION OF INFORMATION WE FILE WITH THE SEC
The SEC allows Protective to "incorporate by reference" the information we
file with them, which means:
- incorporated documents are considered part of the prospectus;
- we can disclose important information to you by referring you to these
documents; and
- information that we file with the SEC will automatically update and
supersede the prospectus and any previously incorporated information.
We incorporate by reference the documents or portions of documents listed
below which were filed with the SEC under the Securities Exchange Act of 1934
(the "Exchange Act"):
- quarterly report on Form 10-Q for the quarter ended March 31, 1999;
- annual report on Form 10-K for the fiscal year ended December 31, 1998;
- amended annual report on Form 10-K/A for the fiscal year ended December
31, 1998;
- current reports on Form 8-K dated February 16, 1999 and April 23, 1999;
- description of Protective's common stock contained in its Registration
Statement on Form 10 on September 4, 1981 as amended by an amendment filed
on Form 8 on October 27, 1981; and
- description of Protective's Rights to Purchase Series A Junior
Participating Cumulative Preferred Stock contained in its Form 8-A filed
on August 7, 1995.
We also incorporate by reference each of the following documents or portions
of documents that we will file with the SEC after the date of the prospectus
until the offering is completed or after the date of the initial registration
statement and prior to the effectiveness of the registration statement:
- reports filed under Sections 13(a) and (c) of the Exchange Act;
- definitive proxy or information statements filed under Section 14 of the
Exchange Act in connection with any subsequent share owners' meeting; and
- reports filed under Section 15(d) of the Exchange Act.
You may also request a copy of any filings referred to above, excluding
exhibits, at no cost by contacting us at: Stockholder Relations, Protective Life
Corporation, P.O. Box 2606, Birmingham, Alabama 35202; telephone: (205)
868-3573; facsimile (205) 868-3541.
1
<PAGE>
FORWARD-LOOKING STATEMENTS
This prospectus and the information incorporated in it by reference include
forward-looking statements within the meaning of Section 27A of the Securities
Act of 1933 and Section 21E of the Securities Exchange Act of 1934 that reflect
Protective's current view with respect to future events and financial
performance. These forward-looking statements are subject to certain risks and
uncertainties, including those identified in "Risk Factors," as well as those
noted in the documents incorporated by reference which could cause actual
results to differ materially from historical results or those anticipated.
Forward-looking statements can be identified by use of words such as "expect,"
"estimate," "project," "budget," "forecast," "anticipated," "plan," and similar
expressions. You are cautioned not to place undue reliance on these
forward-looking statements, which speak only as of their dates. Protective
undertakes no obligation to update or revise forward-looking statements to
reflect changed assumptions, the occurrence of unanticipated events, or changes
to projections over time.
In this prospectus, "we", "us", "our" and "Protective" refer to Protective
Life Corporation. Unless the content otherwise requires, "trusts" refers to PLC
Capital Trust III and PLC Capital Trust IV.
RISK FACTORS
Investing in securities offered by this prospectus involves certain risks.
Any of the following risks could materially adversely affect our business
operating results and financial condition and could result in a loss of your
investment.
WE OPERATE IN A MATURE, HIGHLY COMPETITIVE INDUSTRY, WHICH COULD LIMIT OUR
ABILITY TO GAIN OR MAINTAIN OUR POSITION.
Life and health insurance is a mature industry. In recent years, the
industry has experienced virtually no growth in life insurance sales, though the
aging population has increased the demand for retirement savings products.
Insurance is a highly competitive industry and Protective encounters significant
competition in all lines of business from other insurance companies, many of
which have greater financial resources than Protective, as well as competition
from other providers of financial services.
The life and health insurance industry is consolidating, with larger, more
efficient organizations emerging from consolidation. Also, mutual insurance
companies are converting to stock ownership which will give them greater access
to capital markets.
Protective's ability to compete is dependent upon, among other things, its
ability to attract and retain distribution channels to market its insurance and
investment products, its ability to develop competitive and profitable products,
its ability to maintain low unit costs, and its maintenance of strong financial
strength ratings from rating agencies.
Protective competes against other insurance companies and financial
institutions in the origination of commercial mortgage loans.
A RATINGS DOWNGRADE COULD ADVERSELY AFFECT OUR ABILITY TO COMPETE.
Ratings are an important factor in Protective's competitive position. Rating
organizations periodically review the financial performance and condition of
insurers, including Protective's insurance subsidiaries. A downgrade in the
ratings of Protective's life insurance subsidiaries could adversely affect its
ability to sell its products and its ability to compete for attractive
acquisition opportunities.
Rating organizations assign ratings based upon several factors. While most
of the considered factors relate to the rated company, some of the factors
relate to general economic conditions and circumstances outside the rated
company's control. For the past several years rating downgrades in the industry
have exceeded upgrades.
2
<PAGE>
OUR POLICY CLAIMS FLUCTUATE FROM YEAR TO YEAR.
Protective's results may fluctuate from year to year on account of
fluctuations in policy claims received by Protective.
WE COULD BE FORCED TO SELL ILLIQUID INVESTMENTS AT A LOSS TO COVER POLICYHOLDER
WITHDRAWALS.
Many of the products offered by Protective's insurance subsidiaries allow
policyholders and contract holders to withdraw their funds under defined
circumstances. Protective's insurance subsidiaries design products and configure
investment portfolios to provide and maintain sufficient liquidity to support
anticipated withdrawal demands and contract benefits and maturities. Formal
asset/ liability management programs and procedures are used to monitor the
relative duration of Protective's assets and liabilities. While Protective's
insurance subsidiaries own a significant amount of liquid assets, many of their
assets are relatively illiquid. Significant unanticipated withdrawal or
surrender activity could, under some circumstances, compel Protective's
insurance subsidiaries to dispose of illiquid assets on unfavorable terms, which
could have a material adverse effect on Protective.
INTEREST-RATE FLUCTUATIONS COULD NEGATIVELY AFFECT OUR SPREAD INCOME.
Sudden and/or significant changes in interest rates expose insurance
companies to the risk of not earning anticipated spreads between the interest
rate earned on investments and the credited rates paid on outstanding policies.
Both rising and declining interest rates can negatively affect Protective's
spread income. For example, certain of Protective's insurance and investment
products guarantee a minimum credited interest rate. While Protective develops
and maintains asset/liability management programs and procedures designed to
preserve spread income in rising or falling interest rate environments, no
assurance can be given that significant changes in interest rates will not
materially affect such spreads.
Lower interest rates may result in lower sales of Protective's insurance and
investment products.
OUR INSURANCE SUBSIDIARIES ARE HIGHLY REGULATED.
Protective's insurance subsidiaries are subject to government regulation in
each of the states in which they conduct business. Such regulation is vested in
state agencies having broad administrative power dealing with many aspects of
the insurance business, which may include premium rates, marketing practices,
advertising, policy forms, and capital adequacy, and is concerned primarily with
the protection of policyholders rather than share owners. Protective cannot
predict the form of any future regulatory initiatives.
THE TAX TREATMENT OF OUR POLICYHOLDERS' EARNINGS COULD CHANGE.
Under the Internal Revenue Code of 1986, as amended, income tax payable by
policyholders on investment earnings is deferred during the accumulation period
of certain life insurance and annuity products. This favorable tax treatment may
give certain of Protective's products a competitive advantage over other
non-insurance products. To the extent that the internal revenue code is revised
to reduce the tax-deferred status of life insurance and annuity products, or to
increase the tax-deferred status of competing products, all life insurance
companies, including Protective's subsidiaries, would be adversely affected with
respect to their ability to sell such products, and, depending on grandfathering
provisions, the surrenders of existing annuity contracts and life insurance
policies. Protective cannot predict what future initiatives may be proposed
which may affect Protective.
3
<PAGE>
INDUSTRYWIDE LITIGATION CONCERNING SALES PRACTICES, AGENT MISCONDUCT, FAILURE TO
SUPERVISE AGENTS, AND OTHER MATTERS COULD RESULT IN SUBSTANTIAL JUDGMENTS
AGAINST US.
A number of civil jury verdicts have been returned against insurers in the
jurisdictions in which Protective does business involving the insurers' sales
practices, alleged agent misconduct, failure to properly supervise agents, and
other matters. Increasingly these lawsuits have resulted in the award of
substantial judgments against the insurer that are disproportionate to the
actual damages, including material amounts of punitive damages. In some states,
including Alabama, juries have substantial discretion in awarding punitive
damages which creates the potential for unpredictable material adverse judgments
in any given punitive damages suit. Protective and its subsidiaries, like other
insurers, in the ordinary course of business, are involved in such litigation or
alternatively in arbitration. The outcome of any such litigation or arbitration
cannot be predicted with certainty. In addition, in some class action and other
lawsuits involving insurers' sales practices, insurers have made material
settlement payments.
OUR INVESTMENTS ARE SUBJECT TO RISKS.
Protective's invested assets are subject to customary risks of defaults and
changes in market values. The value of Protective's commercial mortgage
portfolio depends in part on the financial condition of the tenants occupying
the properties which Protective has financed. Factors that may affect the
overall default rate on, and market value of, Protective's invested assets
include interest rate levels, financial market performance, and general economic
conditions, as well as particular circumstances affecting the businesses of
individual borrowers and tenants.
OUR ACQUISITION STRATEGY INVOLVES RISKS.
Protective has actively pursued a strategy of acquiring blocks of insurance
policies. This acquisition strategy has increased Protective's earnings in part
by allowing Protective to position itself to realize certain operating
efficiencies associated with economies of scale. There can be no assurance,
however, that suitable acquisitions, presenting opportunities for continued
growth and operating efficiencies, will continue to be available to Protective,
or that Protective will realize the anticipated financial results from its
acquisitions.
WE ARE DEPENDENT ON THE PERFORMANCE OF OTHERS.
Protective's results may be affected by the performance of others because
Protective has entered into various ventures involving other parties. Examples
include, but are not limited to: many of Protective's products are sold through
independent distribution channels; the Investment Products Division's variable
annuity deposits are invested in funds managed by unaffiliated investment
managers; and a portion of the sales in the Individual Life, Dental, and
Financial Institutions Divisions comes from arrangements with unrelated
marketing organizations.
YEAR 2000 COMPUTER COMPLIANCE ISSUES MAY ADVERSELY AFFECT US.
Computer hardware and software often denote the year using two digits rather
than four; for example, the year 1998 often is denoted by such hardware and
software as "98." It is probable that such hardware and software will
malfunction when calculations involving the year 2000 are attempted because the
hardware and/or software will interpret "00" as representing the year 1900
rather that the year 2000. This "Year 2000" issue potentially affects all
individuals and companies (including Protective, its customers, business
partners, suppliers, banks, custodians and administrators). The problem is most
prevalent in older mainframe systems, but personal computers and equipment
containing computer chips could also be affected.
PLC Capital Trust III and PLC Capital Trust IV share computer hardware and
software with Protective and affiliates of Protective.
4
<PAGE>
There can be no assurances that Protective's Year 2000 efforts will be
successful, that interactions with other service providers with Year 2000 issues
will not impair Protective's operations, or that the Year 2000 issue will not
otherwise adversely affect Protective.
Should some of Protective's systems not be available due to Year 2000
problems, in a reasonably likely worst case scenario, Protective may experience
significant delays in its ability to perform certain functions, but does not
expect an inability to perform critical functions or to otherwise conduct
business. However, other worst case scenarios, depending upon their duration,
could have a material adverse effect on Protective and its operations.
OUR REINSURANCE PROGRAM INVOLVES RISKS.
Protective's insurance subsidiaries cede insurance to other insurance
companies. However, Protective remains liable with respect to ceded insurance
should any reinsurer fail to meet the obligations assumed by it. The cost of
reinsurance is, in some cases, reflected in the premium rates charged by
Protective. Under certain reinsurance agreements, the reinsurer may increase the
rate it charges Protective for the reinsurance, though Protective does not
anticipate increases to occur. Therefore, if the cost of reinsurance were to
increase with respect to policies where the rates have been guaranteed by
Protective, Protective could be adversely affected.
Additionally, Protective assumes policies of other insurers. Any regulatory
or other adverse development affecting the ceding insurer could also have an
adverse effect on Protective.
OUR ABILITY TO PAY PRINCIPAL, INTEREST AND/OR DIVIDENDS ON OFFERED SECURITIES IS
LIMITED.
Protective'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's principal sources of cash flow,
to declare and distribute dividends and to make payments on surplus notes.
Surplus notes are deeply subordinated intercompany notes owed by insurance
company subsidiaries to Protective that are treated as equity capital of such
insurance company subsidiaries for statutory accounting purposes. These payments
may be limited by regulatory restrictions and, in the case of payments on
surplus notes, by certain financial covenants. Protective'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 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.
Under Tennessee insurance laws, Protective's principal operating subsidiary,
Protective Life Insurance Company generally may pay dividends to Protective 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. Under Tennessee insurance laws,
that term generally refers to a dividend that exceeds, together with all
dividends paid by Protective Life within the previous 12 months, the greater of:
- 10% of Protective Life's surplus as regards policyholders at the preceding
December 31; or
- the net gain from operations of Protective Life 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's insurance subsidiaries
are domiciled, which could have the effect, under certain circumstances, of
significantly reducing dividends or other amounts payable to Protective 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, 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, as shareholder or holder of surplus notes, would be entitled to any
payment. Creditors would have to be paid in full before the creditors of
Protective, including holders of debt securities, would be entitled to receive
any payment from the assets of such subsidiary.
5
<PAGE>
PROTECTIVE LIFE CORPORATION
Protective is a Delaware corporation incorporated in 1981. We are a holding
company, whose subsidiaries provide financial services through the production,
distribution, and administration of insurance and investment products.
Protective Life Insurance Company, founded in 1907, is our principal operating
subsidiary. Our principal executive offices are located at 2801 Highway 280
South, Birmingham, Alabama 35223, and its telephone number is (205) 879-9230.
THE PLC CAPITAL TRUSTS
Protective created PLC Capital Trust III and PLC Capital Trust IV, Delaware
statutory business trusts, pursuant to two separate declarations of trust.
Each trust exists solely to:
- issue its preferred securities and common securities;
- invest the gross proceeds of its preferred securities and common
securities in Protective's subordinated debt securities; and
- engage in only those other activities necessary or incidental to these
purposes.
All of the common securities of each trust will be directly or indirectly
owned by Protective. The common securities will represent an aggregate
liquidation amount equal to at least 3% of each trust's total capitalization.
The preferred securities of each trust will represent the remaining 97% of such
trust's total capitalization. The common securities will have terms
substantially identical to, and will rank equal in priority of payment with, the
preferred securities. However, if Protective defaults on the related
subordinated debt securities, then cash distributions and liquidation,
redemption and other amounts payable on the common securities will be
subordinate to the preferred securities in priority of payment.
The preferred securities of each trust will be guaranteed by Protective as
described later in this prospectus.
Each trust has a term of approximately 55 years, but may earlier terminate
as provided in its declaration. Each trust's business and affairs will be
conducted by the trustees appointed by Protective, as the direct or indirect
holder of all the common securities. The holder of the common securities of each
trust will be entitled to appoint, remove or replace any of, or increase or
reduce the number of, the trustees of the trusts. The duties and obligations of
the trustees shall be governed by the declaration of trust for such trust. A
majority of the trustees of each trust will be persons who are employees or
officers of or affiliated with Protective. One trustee of each trust will be a
financial institution which will be unaffiliated with Protective and which shall
act as property trustee and as indenture trustee for purposes of the Trust
Indenture Act of 1939, pursuant to the terms set forth in a prospectus
supplement. 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 trustee of each trust will have its principal place of
business or reside in the State of Delaware.
Protective will pay all fees and expenses related to the trusts and the
offering of preferred securities and common securities, the payment of which
will be guaranteed by Protective. 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 trust's
offices are located at 2801 Highway 280 South, Birmingham, Alabama 35223, and
each trust's telephone number is (205) 879-9230.
The trusts will not have separate financial statements. The statements would
not be material to holders of the preferred securities because the trusts will
not have any independent operations. Each of the trusts exists solely for the
reasons summarized above.
6
<PAGE>
USE OF PROCEEDS
Except as otherwise described in a prospectus supplement, the proceeds from
the sale by any trust of any preferred securities, together with any capital
contributed in respect of common securities, will be loaned to Protective in
exchange for Protective's subordinated debt securities. We intend to use
borrowings from the trusts, and the net proceeds from any sale of our debt
securities, preferred stock, common stock, stock purchase contracts and stock
purchase units for general corporate purposes unless otherwise specified in a
prospectus supplement relating to such securities. Such general corporate
purposes may include, but are not limited to, repayments of our indebtedness or
the indebtedness of our subsidiaries. Pending such use, the proceeds may be
invested temporarily in short-term marketable securities. The prospectus
supplement relating to an offering will contain a more detailed description of
the use of proceeds of any specific offering of securities.
CONSOLIDATED EARNINGS RATIOS
The following table sets forth, for the years and periods indicated,
Protective's ratios of:
- consolidated earnings to fixed charges;
- consolidated earnings to distributions on the guaranteed preferred
beneficial interests; and
- consolidated earnings to the combined fixed charges, distributions on the
guaranteed preferred beneficial interests and interest credited on
investment products.
The guaranteed preferred beneficial interests discussed in this prospectus
comprise three types of securities:
- Series A Preferred Securities;
- Trust I Preferred Securities; and
- Trust II Preferred Securities.
We calculate the ratio of "Consolidated Earnings to Fixed Charges" by
dividing the sum of income before income tax (BT) and interest expense on debt
(I) by interest expense on debt. The formula for this calculation, therefore,
would be: (BT+I)/I.
We calculate the ratio of "Consolidated Earnings to Combined Fixed Charges
and Distributions on the Guaranteed Preferred Beneficial Interests" by dividing
the sum of income before income tax (BT) and interest expense on debt (I) by the
sum of the interest expense on debt (I), and distributions on the guaranteed
preferred beneficial interests (G). The resulting formula is: (BT+I)/(I+G). The
distributions on the guaranteed preferred beneficial interests (after-tax) is
reported in our financial statements as "minority interests in income of
consolidated subsidiaries."
We calculate the ratio of "Earnings to Combined Fixed Charges, Distributions
on the Guaranteed Preferred Beneficial Interests and Interest Credited on
Investment Products" by dividing the sum of income before income tax (BT),
interest expense on debt (I) and interest credited on investment products (IP)
by the sum of interest expense on debt (I), distributions on the guaranteed
preferred beneficial interests (G) and interest credited on investment products
(IP). The formula of this ratio is: (BT+I+IP)/ (I+G+IP). Investment products
include products such as guaranteed investment contracts and annuities.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------------------------------------
<S> <C> <C> <C> <C> <C>
1994 1995 1996 1997 1998
--------- --------- --------- --------- ---------
Ratio of Consolidated Earnings to Fixed Charges....................... 14.7 13.6 14.9 17.7 17.3
Ratio of Consolidated Earnings to Combined Fixed Charges and
Distributions on the Guaranteed Preferred Beneficial Interests...... 10.8 9.0 10.0 9.2 7.3
Ratio of Consolidated Earnings to Combined Fixed Charges,
Distributions on the Guaranteed Preferred Beneficial Interests and
Interest Credited on Investment Products............................ 1.4 1.4 1.5 1.5 1.5
<CAPTION>
THREE MONTHS
ENDED MARCH 31,
--------------------
<S> <C> <C>
1998 1999
--------- ---------
Ratio of Consolidated Earnings to Fixed Charges....................... 23.8 20.6
Ratio of Consolidated Earnings to Combined Fixed Charges and
Distributions on the Guaranteed Preferred Beneficial Interests...... 7.6 8.3
Ratio of Consolidated Earnings to Combined Fixed Charges,
Distributions on the Guaranteed Preferred Beneficial Interests and
Interest Credited on Investment Products............................ 1.5 1.6
</TABLE>
7
<PAGE>
DESCRIPTION OF DEBT SECURITIES OF PROTECTIVE
The senior debt securities are to be issued in one or more series under the
senior indenture, dated as of June 1, 1994, between Protective and The Bank of
New York, as 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.
The subordinated debt securities are to be issued under the subordinated
indenture, dated as of June 1, 1994, between Protective and The Bank of New
York, successor to AmSouth Bank by transfer of assets, successor by merger to
AmSouth Bank of Alabama, successor by conversion of charter, to AmSouth Bank
N.A., as trustee, 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;
- Supplemental Indenture No. 3, dated as of April 29, 1997; and
- Supplemental Indenture No. 4, dated as of November 20, 1997.
Copies of the indentures have been filed as exhibits to the registration
statement which includes this prospectus.
The following summary relating to the debt securities and provisions of the
indentures is not meant to be a complete description and is subject to, and is
qualified in its entirety by reference to, all the provisions of the indentures,
as they may be amended or supplemented from time to time. 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 by reference.
GENERAL
The debt securities will be unsecured obligations of Protective. The senior
debt securities will be unsecured and will rank equally with all other unsecured
and unsubordinated obligations of Protective. 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. See "--Subordination under the Subordinated
Indenture". The Indentures do not limit the aggregate amount of debt securities
which may be issued. 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.
Each prospectus supplement will describe the terms relating to the specific
series of debt securities being offered, including:
- the title;
- any limit upon the amount that may be issued;
- the date or dates on which the principal of and premium, if any, will
mature or the method of determining such date or dates;
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<PAGE>
- the interest rate or rates, which may be fixed or variable, if any, or the
method of calculating such rate or rates;
- the date or dates from which interest, if any, will accrue or the method
by which such date or dates will be determined;
- the date or dates on which interest, if any, will be payable and the
record date or dates for such payment;
- the place or places where principal of, premium, if any, and interest, if
any, will be payable;
- the period(s) within which, the price(s) 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;
- any mandatory or optional sinking fund provisions or any provisions for
remarketing the securities and other related terms and provisions;
- the denominations in which such debt securities are authorized to be
issued;
- 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 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;
- 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;
- if other than the full principal amount, the portion of the principal
amount of such debt securities which will be payable upon the acceleration
of maturity or the method by which such portion shall be determined;
- if the principal amount payable at the stated maturity of any of such debt
securities can not be determined as of any one or more dates prior to the
stated maturity, the amount which will be deemed to be the principal
amount as of any such date for any purpose, including the principal amount
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);
- 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;
- any addition to, or modification or deletion of, any event of default or
any covenant of Protective specified in the indenture with respect to such
debt securities;
- the application, if any, of such means of defeasance or covenant
defeasance as may be specified for such debt securities;
- 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;
- in the case of the subordinated indenture, the terms, if any, upon which
the holders may convert or exchange such debt securities into or for
common stock of Protective or other securities or property; and
9
<PAGE>
- 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 prospectus supplement
will describe the special restrictions and considerations, including special
offering restrictions and special federal income tax considerations, which apply
to any such debt securities and to payment on and transfer and exchange of such
debt securities. 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. The applicable prospectus supplement will
describe the federal income tax consequences and special considerations
applicable to any such debt securities.
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 prospectus
supplement will set forth 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.
If any index is used to determine the amount of principal payments, premium,
if any, or interest on any series of debt securities, the prospectus supplement
will describe the special federal income tax, accounting and other
considerations applicable.
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 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 maintained for that purpose as Protective may
designate from time to time. Protective may also make interest payments, if any,
on debt securities in registered form:
- by checks mailed to the holders of debt securities at their registered
addresses; or
- by wire transfer to an account maintained by the holder 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 on 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 the paying agencies outside the United States appointed
by Protective from time to time. The prospectus supplement will name the initial
paying agents outside the United States for a series of debt securities.
Protective may at any time designate additional paying agents or rescind the
designation of any paying agents. However, if debt securities of a series are
issuable as registered securities, Protective will be
10
<PAGE>
required to maintain at least one paying agent in each place of payment for such
series. If debt securities of a series are issuable as bearer securities,
Protective 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
may be presented and surrendered for payment. (Section 9.2 of each indenture.)
All moneys paid by Protective 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 will be repaid to Protective. The
holder of a debt security may look only to Protective for payment after such
time. (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
Protective designates 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 global
form. A debt security in global form will be deposited with, or on behalf of, a
depository which will be named in the applicable prospectus supplement. In such
a case, one or more global debt 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 global
debt 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 global debt security may not be transferred or exchanged
except (1) as a whole among the depository for such global debt security and its
nominee and/or their successors and (2) in the circumstances described in the
applicable prospectus supplement. (Section 3.5 of each indenture.)
The applicable prospectus supplement will describe the specific terms of the
depository arrangement with respect to any portion of a series of debt
securities to be listed in global form. Protective expects that the following
provisions will apply to depository arrangements.
Upon the issuance of any global debt security, and the deposit of such
global debt security with or on behalf of the depository, the depository will
credit, on its book-entry registration and transfer system, the respective
principal amounts of the debt securities represented by such global debt
security to the accounts of institutions that have accounts with the depository
or its nominee. These institutions are referred to as "participants." The
accounts to be credited will be designated by the underwriters or agents
engaging in the distribution of such debt securities or by Protective, if such
debt securities are offered and sold directly by Protective. Only participants
or persons that hold interests through participants may have beneficial
ownership interests in a global debt security. The depository or its nominee
will maintain records of the ownership of beneficial interests held by
participants. Participants will maintain records of the beneficial ownership
interests of persons that hold through them. The laws of some jurisdictions
require that certain purchasers of securities take physical delivery of such
securities in certificated form. The above limitations and such laws may impair
the ability to transfer beneficial interests in such global debt securities.
So long as the depository, or its nominee, is the registered owner of a
global debt security, the depository or its nominee will be considered the sole
owner or holder of the debt securities 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 a global debt security will not be entitled to have debt securities
of the series represented by such global debt security registered in their
names, will not receive or be entitled to receive physical delivery of
11
<PAGE>
debt securities in certificated form and will not be considered the holders for
any purposes under the relevant indenture. (Section 3.5 of each indenture.)
Each person owning a beneficial interest in a global debt 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 understands that, under existing industry practices, if Protective
requests any action of holders or any owner of a beneficial interest in a global
debt 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 global debt security registered in the name of a
depository or its nominee will be made to such depository or its nominee, as the
registered owner of such global debt security.
Protective expects that the depository for any debt securities issued in
global form, will immediately credit participants' accounts with payments of
principal, premium or interest, in amounts proportionate to their respective
beneficial interests in the principal amount of such global debt security as
shown on the records of such depository. Protective also expects that payments
by participants to owners of beneficial interests in such global debt 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 global debt
security may be subject to various policies and procedures adopted by the
depository from time to time. None of Protective, the respective debt trustee or
any agent of Protective 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 global debt 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 issued in global form notifies Protective
that it is unwilling or unable to continue as depository and a successor
depository is not appointed by Protective within 90 days, Protective will issue
such debt securities in definitive certificated form in exchange for such global
debt security. In addition, Protective may at any time and in its sole
discretion determine not to have any of the debt securities of a series issued
in global form and, in such event, will issue debt securities of such series in
definitive certificated form in exchange for all of the global debt 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 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 applicable
prospectus supplement will describe 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.
12
<PAGE>
CONSOLIDATION, MERGER OR SALE BY PROTECTIVE
Under the terms of each indenture, Protective is prohibited from
consolidating with or merging into any other corporation or from selling its
assets substantially as an entirety, unless:
- the corporation formed by such consolidation or into which Protective is
merged or the corporation which acquires its assets is organized in the
United States and expressly assumes all of the obligations of Protective
under each Indenture;
- immediately after giving effect to such transaction, no default or event
of default shall have happened and be continuing; and
- if, as a result of such transaction, properties or assets of Protective
would become subject to a mortgage, pledge, lien, security interest or
other encumbrance not permitted by the debt securities of any series,
Protective 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 is merged or to which
such sale is made, shall succeed to and be substituted for Protective 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 occurs with respect to
the debt securities of any series and is continuing, the trustee for such series
or the holders of 25% in aggregate principal amount of all of the outstanding
debt securities of that series, by written notice to Protective, and to the
trustee for such series, if notice is given by such holders of debt securities,
may declare the principal of, or, if the debt securities of that series are
original issue discount securities or indexed securities, such portion of the
principal amount specified in the prospectus supplement, and accrued interest on
all the debt securities of that series to be due and payable. However, with
respect to any debt securities, including subordinated debentures, issued under
the subordinated indenture, 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.)
The following are events of default with respect to debt securities unless
otherwise provided in a prospectus supplement relating to the debt securities of
a particular series:
- default for 30 days in payment of any interest on any debt security of
that series or any applicable coupon or any additional amount payable with
respect to debt securities of such series as specified in the applicable
prospectus supplement when due;
- 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;
- default for 60 days after notice to Protective by the trustee for such
series, or by the holders of 25% in aggregate principal amount of the debt
securities of such series then outstanding, in the performance of any
other agreement in the debt securities of that series, in the indenture or
in any supplemental indenture or board resolution referred to therein
under which the debt securities of that series may have been issued;
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<PAGE>
- default in payment of principal relating to indebtedness of Protective 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 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 by
the respective trustee or to Protective and the respective 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
- certain events of bankruptcy, insolvency or reorganization of Protective
or Protective Life Insurance Company. (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 will be described in the applicable prospectus
supplement. (Sections 3.1 and 5.1 (7) of each indenture.)
Each indenture provides that the respective 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 has been cured or waived. However,
except in the case of a default in payment on the debt securities of that
series, the respective trustee may withhold the notice if and so long as the
Board of Directors of Protective, 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 trustee for such series, or exercising any trust or power conferred on such
trustee. (Section 5.8 of each indenture.)
Each indenture includes a covenant that Protective will file annually with
the respective trustee a certificate as to Protective'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 trustee for such series may waive, on
behalf of the holders of all debt securities of such series, any past default or
event of default with respect to that series and its consequences, except a
default or event of default in the payment of the principal of, premium, if any,
or interest, if any, on any debt security. (Section 5.7 of each indenture.)
MODIFICATION OF THE INDENTURES
Each indenture contains provisions permitting Protective 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:
- to evidence the succession of another corporation to Protective and the
assumption of the covenants of Protective by a successor to Protective;
- to add to the covenants of Protective or surrender any right or power of
Protective;
- to add additional events of default with respect to any series of debt
securities;
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<PAGE>
- to add or change any provisions to such extent as necessary to permit or
facilitate the issuance of debt securities in bearer form;
- to change or eliminate any provision affecting only debt securities not
yet issued;
- to secure the debt securities;
- to establish the form or terms of debt securities;
- 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 trustee or trustees for specific series of debt
securities;
- if allowed without penalty under applicable laws and regulations, to
permit payment in respect of debt securities in bearer form in the United
States;
- 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
- 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 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:
- change the time for payment of principal or premium, if any, or interest
on any debt security;
- 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;
- reduce the interest rate, the amount of principal or the amount of
premium, if any, payable upon the redemption of any debt security;
- reduce the amount of principal payable upon acceleration of the maturity
of any original issue discount or indexed security;
- change the currency or currency unit in which any debt security or any
premium or interest thereon is payable;
- impair the right to institute suit for the enforcement of any payment on
or with respect to any debt security;
- 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;
- change the obligation of Protective to maintain an office or agency in the
places and for the purposes specified in such indenture;
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<PAGE>
- 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
- modify the provisions relating to waiver of certain defaults or any of the
foregoing provisions. (Section 8.2 of each indenture.)
SUBORDINATION UNDER THE SUBORDINATED INDENTURE
In the subordinated indenture, Protective 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:
- all indebtedness of Protective, 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;
- any indebtedness of others of the kinds described in the preceding clause
for the payment of which Protective is responsible or liable as guarantor
or otherwise; and
- 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.
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, if:
- Protective defaults in the payment of any principal, or premium, if any,
or interest on any Senior Indebtedness, whether at maturity or at a date
fixed for prepayment or declaration or otherwise; or
- an event of default occurs with respect to any senior indebtedness
permitting the holders to accelerate the maturity and written notice of
such event of default, requesting that payments on subordinated debt
securities cease, is given to Protective by the holders of senior
indebtedness,
unless and until such default in payment or event of default has been cured or
waived or ceases to exist.
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 on account of subordinated debt securities in the event of:
- any insolvency, bankruptcy, receivership, liquidation, reorganization,
readjustment, composition or other similar proceeding relating to
Protective, its creditors or its property;
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- any proceeding for the liquidation, dissolution or other winding-up of
Protective, voluntary or involuntary, whether or not involving insolvency
or bankruptcy proceedings;
- any assignment by Protective for the benefit of creditors; or
- any other marshalling of the assets of Protective.
In any such event, payments or distributions which would otherwise be made for
subordinated debt securities will generally be paid to the holders of senior
indebtedness, or their representatives, in accordance with the priorities
existing between these creditors at that time until the senior indebtedness is
paid in full. If the payments or distributions on subordinated debt securities
are in the form of Protective's securities or those of any other corporation
under a plan or reorganization or adjustment and are subordinate to outstanding
senior indebtedness and to any securities issued with respect to such senior
indebtedness under a plan of reorganization or readjustment, they will be made
to the holders of the subordinated debt securities. No present or future holder
of any senior indebtedness will be prejudiced in the right to enforce the
subordination of subordinated debt securities by any act or failure to act on
the part of Protective.
Senior indebtedness will only be deemed to have been paid in full if the
holders of such indebtedness have received cash, securities or other property
which is equal to the amount of the outstanding senior indebtedness. After
payment in full of all present and future senior indebtedness, holders of
subordinated debt securities will be subrogated to the rights of any holders of
senior indebtedness to receive any further payments or distributions that are
applicable to the senior indebtedness until all the subordinated debt securities
are paid in full. In matters between holders of subordinated debt securities and
any other type of Protective's creditors, any payments or distributions that
would otherwise be paid to holders of senior debt securities and that are made
to holders of subordinated debt securities because of this subrogation will be
deemed a payment by Protective on account of senior indebtedness and not on
account of subordinated debt securities.
The subordinated indenture provides that the foregoing subordination
provisions, may be changed prior to the issuance of any subordinated debt
securities. The prospectus supplement relating to such subordinated debt
securities would describe any such change.
The subordinated indenture places no limitation on the amount of additional
senior indebtedness that may be incurred by Protective. Protective expects from
time to time to incur additional indebtedness constituting senior indebtedness.
DEFEASANCE AND COVENANT DEFEASANCE
If indicated in the applicable prospectus supplement, Protective may elect
either:
- 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
- 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 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
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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 the first clause 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:
- delivery by Protective 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;
- 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
- 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.)
In addition, with respect to the subordinated indenture, in order to be
discharged:
- no event or condition shall exist that, pursuant to certain provisions
described under "--Subordination under the Subordinated Indenture" above,
would prevent Protective from making payments of principal of, and
premium, if any, and interest on subordinated debt securities and coupons
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
- Protective shall deliver to the trustee under the subordinated indenture
an opinion of counsel to the effect that the trust funds will not be
subject to any rights of holders of senior indebtedness, and 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, 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 may exercise its defeasance option with respect to such debt
securities notwithstanding its prior exercise of its covenant defeasance option.
If Protective exercises its defeasance option, payment of such debt securities
may not be accelerated because of an event of default. If Protective 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.
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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 for the
relevent series of debt securities. (Section 1.6 of each indenture)
TITLE
Protective, the debt trustee and any agent of Protective or the debt trustee
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 TRUSTEE
The Bank of New York is the trustee under the senior indenture and the
subordinated indenture. Protective may also maintain banking and other
commercial relationships with The Bank of New York and its affiliates in the
ordinary course of business. The Bank of New York is also the registrar and
transfer agent for Protective's common stock. The Indentures contain certain
limitations on the right of The Bank of New York, should it become a creditor of
Protective, 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. The Bank of New York 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.
DESCRIPTION OF CAPITAL STOCK OF PROTECTIVE
AUTHORIZED AND OUTSTANDING CAPITAL STOCK
The authorized capital stock of Protective is 164,000,000 shares, consisting
of:
- 3,600,000 shares of preferred stock, par value $1.00 per share, of which
no shares were outstanding as of March 31, 1999;
- 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, 1999; and
- 160,000,000 shares of common stock, par value $.50 per share, of which
64,474,339 shares, as well as the same number of rights ("Rights") to
purchase shares of Junior Preferred Stock pursuant to the Rights
Agreement, dated August 7, 1995 (the "Rights Agreement"), between
Protective and The Bank of New York, as successor to AmSouth Bank, as
Rights Agent, were outstanding as of March 31, 1999.
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 may, without approval of the stockholders,
issue preferred stock 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
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descriptions set forth below do not purport to be complete and are qualified in
their entirety by reference to:
- the 1998 Restated Certificate of Incorporation of Protective;
- the 1998 Restated By-laws of Protective; and
- the Rights Agreement.
Copies of each of these documents are filed as exhibits to the registration
statement which includes this prospectus.
No holders of any class of Protective's capital stock are entitled to
preemptive rights.
DESCRIPTION OF PREFERRED STOCK OF PROTECTIVE
The particular terms of any series of preferred stock to be offered pursuant
to this prospectus will be set forth in a prospectus supplement. The rights,
preferences, privileges and restrictions, including dividend rights, voting
rights, terms of redemption and liquidation preferences, of the 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 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
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 legally available funds.
The holders of common stock will possess exclusive voting rights in Protective,
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, the holders of common
stock are entitled to receive, after payment of all of Protective'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. 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. The Bank of New York 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."
POTENTIAL ANTI-TAKEOVER EFFECT OF PROTECTIVE'S RESTATED CERTIFICATE OF
INCORPORATION
The provisions of Protective's certificate of incorporation that are
summarized below may 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 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.
BUSINESS COMBINATIONS. Protective's certificate of incorporation contains a
"fair price" provision which generally requires that certain "business
combinations" with a "related person" (generally the beneficial owner of at
least 20 percent of Protective's voting stock) be approved by the holders of at
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least 80 percent of Protective's voting stock and the holders of at least 67
percent of the voting stock held by stockholders other than such related person,
unless:
(1) at least a majority of the "continuing directors" of Protective
- has expressly approved in advance the acquisition of Protective's
voting stock that caused the related person involved in the business
combination to become a related person; or
- has approved the business combination; or
(2) the business combination is either a "reorganization" or a business
combination in which Protective 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 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'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's certificate of incorporation contains the following
definitions:
"Business combination" means:
- any reorganization of Protective or a subsidiary of Protective with or
into a related person;
- 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" of the assets either of Protective or of a
subsidiary of Protective, or both, to a related person;
- any reorganization of a related person with or into Protective or a
subsidiary of Protective;
- any sale, lease, exchange, transfer or other disposition of all or any
substantial part of the assets of a related person to Protective or a
subsidiary of Protective;
- the issuance of any securities of Protective or any subsidiary of
Protective 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;
- any reclassification of Protective'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
- any agreement, contract, plan or other arrangement providing for any of
the transactions described in the definition of business combination.
For purposes of Protective's certificate of incorporation, "continuing
director" means a director who was a member of the Board of Directors of
Protective immediately prior to the time such related person became a related
person.
"Substantial part" means more than 20 percent of the fair market value of
the total assets of the corporation in question, as determined in good faith by
a majority of the continuing directors as of the end of its most recent fiscal
year 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, in the case
of a subsidiary of Protective, 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 certificate of incorporation, the amendment of, repeal of or
adoption of any provision inconsistent with provisions of the 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's
voting
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stock and the holders of at least 67 percent of Protective'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 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 currently entitles the registered holder to purchase from
Protective one two-hundredth of a share of Junior Preferred Stock at a purchase
price of $55 per one two-hundredth of a share of Junior Preferred Stock, subject
to adjustment.
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 until the earlier to occur
of:
- ten days following the time of a public announcement or notice to
Protective 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
(the "stock acquisition time"); or
- 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 these dates is referred to as the "distribution date").
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
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 as described
below or extended.
To prevent dilution, 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 in connection with the
following events:
- in the event of a stock dividend on, or a subdivision, combination or
reclassification of, the Junior Preferred Stock;
- 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
- 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 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.
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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 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 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 and its stockholders by a majority of the members
of the Board of Directors of Protective 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
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 (1) the stock acquisition time and (2)
August 18, 2005, Protective, by resolution of its Board of Directors, may redeem
the Rights in whole, but not in part, at a redemption price of $.01 per Right.
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 this 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, the Board of Directors of Protective 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 at an exchange ratio of one share of
common stock per Right, subject to adjustment. Protective may at its option
substitute shares of Junior Preferred Stock, or other series of substantially
similar preferred stock of Protective, for some or all of the shares of common
stock exchangeable for Rights, at an exchange ratio of one two-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, 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 stock, or other consideration, of Protective or for
common stock of the acquiring company as set forth above.
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The Rights and the Rights Agreement can be amended by Protective's Board of
Directors 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 or the holders of the Rights, the Board of Directors
may only supplement or amend the Rights Agreement in order to:
- cure any ambiguity;
- correct or supplement any provision contained in the Rights Agreement
which may be defective or inconsistent with any other provision in the
Rights Agreement;
- shorten or lengthen any time period under the Rights Agreement; or
- make any changes or supplements which Protective 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.
Any such action by the Board of Directors must have the concurrence of a
majority of the continuing directors and the continuing directors must
constitute a majority of directors then in office. However, the Rights Agreement
may not be supplemented or amended to lengthen:
- a time period relating to when the Rights may be redeemed or to modify the
ability (or inability) of Protective's Board of Directors to redeem the
Rights, in either case at such time as the Rights are not then redeemable;
or
- 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 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 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 which are not approved by Protective's Board of Directors. However,
the Rights should not interfere with any merger or other business combination
approved by Protective'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 which includes this prospectus. A copy of
the Rights Agreement can be obtained as described under "Where You Can Find More
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 Protective's
Board of Directors. 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 Protective's certificate of incorporation and the certificate
of designation relating to the Junior Preferred Stock which are filed as
exhibits to the registration statement which includes this prospectus.
RANKING. The Junior Preferred Stock shall rank junior to all other series
of Protective'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 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 (1) $2.50 per share ($10.00 per
annum) or (2) 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 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:
- 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;
- except as otherwise provided by the certificate of designation, the
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; and
- 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, 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 (1) $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 (2) 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.
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CONSOLIDATION, MERGER, ETC. In case Protective 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 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 shall not:
- 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;
- 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 may at any time redeem, purchase or otherwise acquire shares of
any such parity stock in exchange for shares of any stock of Protective
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Junior Preferred Stock; or
- 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 shall not permit any subsidiary of Protective to purchase or
otherwise acquire for consideration any shares of stock of Protective unless
Protective 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 Protective's 9% Subordinated Debentures, Series A, the
8 1/4% Subordinated Debentures, Series B and the 6 1/2% Subordinated Debentures,
Series C, Protective has the right to extend the interest payment period with
respect to the Series A, B & C 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--Events of Default, Notice and Certain Rights on
Default") under the Series A, B & C Debentures, Protective 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
making any guarantee payments with respect to the foregoing, with certain
limited exceptions.
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DESCRIPTION OF PREFERRED SECURITIES OF THE PLC CAPITAL TRUSTS
GENERAL
The declarations of trust of PLC Capital Trust III and PLC Capital Trust IV
authorizes each trust to issue one series of preferred securities which will
have the terms described in a prospectus supplement. The proceeds from the sale
of each trust's preferred and common securities will be used by such trust to
purchase a series of subordinated debt securities issued by Protective. The
subordinated debt securities will be held in trust by the trust's property
trustee for the benefit of the holders of such preferred and common securities.
The declarations of trust have been qualified as indentures under the Trust
Indenture Act. The institutional trustee for each trust, Wilmington Trust
Company, an independent trustee, will act as indenture trustee for the preferred
securities, to be issued by each trust, for the purposes of compliance with the
provisions of the Trust Indenture Act. The preferred securities will have such
terms, including 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 of trust or made part of the declaration of
trust by the Trust Indenture Act. Such terms, rights and restrictions will
mirror the terms of the subordinated debt securities held by the applicable
trust and will be described in the applicable prospectus supplement. The
prospectus supplement relating to the preferred securities of the applicable
trust will provide specific terms, including:
- the distinctive designation of such preferred securities;
- the number of preferred securities issued by such trust;
- the annual distribution rate (or method of determining such rate) for
preferred securities issued by such 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;
- whether distributions on preferred securities issued by such 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 trust shall be cumulative;
- the amount or amounts which shall be paid out of the assets of such trust
to the holders of preferred securities of such trust upon voluntary or
involuntary dissolution, winding-up or termination of such trust;
- the obligation, if any, of such trust to purchase or redeem Preferred
Securities issued by such 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 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);
- the voting rights, if any, of preferred securities issued by such 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 PLC Capital
Trusts III or IV, or of both, as a condition to specified action or
amendments to the declaration of trust of such trust;
- the terms and conditions, if any, upon which the subordinated debt
securities may be distributed to holders of preferred securities;
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- if applicable, any securities exchange upon which the preferred securities
shall be listed; and
- any other relevant rights, preferences, privileges, limitations or
restrictions of preferred securities issued by such trust not inconsistent
with the declaration of trust of such trust or with applicable law.
All preferred securities will be guaranteed by Protective to the extent set
forth below under "Description of the Preferred Securities Guarantees." The
guarantee of Protective, when taken together with Protective's obligations under
the subordinated debt securities and the relevant supplemental indenture, and
its obligations under each declaration of trust, including obligations to pay
costs, expenses, debts and liabilities of the trust, other than with respect to
preferred securities and common securities, would provide a full and
unconditional guarantee of amounts due on preferred securities issued by the
trusts. The prospectus supplement will describe any United States federal income
tax considerations applicable to any offering of preferred securities.
In connection with the issuance of preferred securities, each trust will
issue one series of common securities. The declaration of each trust authorizes
the regular trustees to issue on behalf of such 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 trust will be substantially identical to
the terms of the preferred securities issued by such trust and the common
securities will rank equally, and payments will be made thereon pro rata, with
the preferred securities. However, upon an event of default under the
declaration of trust, 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 trustees
of a trust. All of the common securities of each trust will be directly or
indirectly owned by Protective.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF PREFERRED SECURITIES
If an event of default occurs, and is continuing, under the declaration of
trust of PLC Capital Trust III or PLC Capital Trust IV, the holders of the
preferred securities of that trust would typically rely on the property trustee
to enforce its rights as a holder of the subordinated debt securities against
Protective. Additionally, those who together hold a majority of the liquidation
amount of the trust's 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
- direct the exercise of any trust or power that the property trustee holds
under the declaration of trust, including the right to direct the property
trustee to exercise the remedies available to it as a holder of the
subordinated debt securities.
If such a default occurs and the event is attributable to Protective's
failure to pay interest or principal on the subordinated debt securities when
due, including any payment on redemption, and this debt payment failure is
continuing, a preferred securities holder of the trust may directly institute a
proceeding for the enforcement of this payment. Such a proceeding will be
limited, however, to enforcing the payment of this principal or interest only up
to the value of the aggregate liquidation amount of the holder's preferred
securities as determined after the due date specified in the applicable series
of subordinated debt securities. Protective will be subrogated to the holder's
rights under the applicable declaration of trust to the extent of any payment it
makes to the holder in connection with such a direct action.
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DESCRIPTION OF THE PREFERRED SECURITIES GUARANTEES
Set forth below is a summary of information concerning the guarantees which
will be executed and delivered by Protective for the benefit of the holders from
time to time of preferred securities. Each 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 guarantee for the
purposes of compliance with the provisions of the Trust Indenture Act. The terms
of each guarantee will be those set forth in such guarantee and those made part
of such 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 guarantee, which is
filed as an exhibit to the registration statement which includes this
prospectus, and the Trust Indenture Act. Each guarantee will be held by the
trustee for the benefit of the holders of the preferred securities of the
applicable trust.
GENERAL
Pursuant to each guarantee, Protective will irrevocably and unconditionally
agree, to the extent set forth therein, to pay in full, to the holders of the
preferred securities issued by PLC Capital Trust III or IV, except to the extent
paid by such trust, as and when due, regardless of any defense, right of set-off
or counterclaim which such trust may have or assert:
- any accrued and unpaid distributions which are required to be paid on such
preferred securities, to the extent such trust shall have funds available;
- the redemption price, and all accrued and unpaid distributions to the date
of redemption (the "Redemption Price") to the extent such trust has funds
available with respect to any preferred securities called for redemption
by such trust; and
- upon a voluntary or involuntary dissolution, winding-up or termination of
such 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:
(1) 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 trust has funds available; and
(2) the amount of assets of such trust remaining available for
distribution to holders of such preferred securities in liquidation
of such trust.
Protective'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 trust to pay such amounts to
such holders.
Each guarantee will be a guarantee with respect to the preferred securities
issued by the applicable trust, but will not apply to any payment of
distributions except to the extent such trust shall have funds available
therefor. If Protective does not make interest payments on the subordinated debt
securities purchased by a trust, such trust will not pay distributions on the
preferred securities issued by such trust and will not have funds available
therefor. The guarantee, when taken together with Protective's obligations under
the subordinated debt securities, the subordinated indenture, and the
declaration of trust will provide a full and unconditional guarantee on a
subordinated basis by Protective of payments due on the Preferred Securities.
Protective will also agree separately, through the guarantees of the common
securities, to irrevocably and unconditionally guarantee the obligations of the
trusts with respect to the common securities to the same extent as the
guarantees of the preferred securities. However, upon an event of default under
the 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.
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CERTAIN COVENANTS OF THE COMPANY
In each guarantee, Protective will covenant that, so long as any preferred
securities issued by the applicable trust remain outstanding, if any event that
would constitute an event of default under such guarantee or the declaration of
such trust has occurred, then:
- Protective 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:
(1) purchases or acquisitions of shares of its common stock in
connection with the satisfaction by Protective of its obligations
under any employee benefit plans or the satisfaction by Protective
of its obligation pursuant to any contract or security requiring it
to purchase shares of its common stock;
(2) as a result of a reclassification of its capital stock or the
exchange or conversion of one class or series of Protective capital
stock for another class or series of Protective capital stock;
(3) the purchase of fractional interests in shares of Protective capital
stock pursuant to an acquisition or the conversion or exchange
provisions of such Protective capital stock or the security being
converted or exchanged; and
(4) redemptions or purchases pursuant to Protective's Rights Agreement,
dated August 7, 1995, between Protective and The Bank of New York as
Successor Rights Agent to AmSouth Bank as Rights Agent;
- Protective 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 which rank equally with or junior to
subordinated debt securities; and
- Protective shall not make any guarantee payments with respect to the
foregoing, other than pursuant to a guarantee of preferred securities or
common securities, or Protective's guarantees with respect to:
(1) PLC Capital L.L.C.'s 9% Cumulative Monthly Preferred Securities,
Series A;
(2) PLC Capital Trust's 8 1/4% Trust Originated Preferred Securities and
Common Securities; and
(3) PLC Capital Trust II's 6 1/2% Trust Originated Preferred Securities
and Common Securities.
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
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 trust. All guarantees and agreements contained in a
guarantee shall bind the successors, assigns, receivers, trustees and
representatives of Protective and shall inure to the benefit of the holders of
the preferred securities of the applicable trust then outstanding.
TERMINATION
Each guarantee will terminate as to the preferred securities issued by the
applicable trust:
- upon full payment of the redemption price of all preferred securities of
such trust;
- upon distribution of the subordinated debt securities held by such trust
to the holders of the preferred securities of such trust; or
- upon full payment of the amounts payable in accordance with the
declaration of such trust upon liquidation of such trust.
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Each 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 trust must restore payment of any sums paid under such preferred
securities or such guarantee.
EVENTS OF DEFAULT
An event of default under a guarantee will occur upon the failure of
Protective to perform any of its payment or other obligations thereunder.
The holders of a majority in liquidation amount of the preferred securities
to which such guarantee relates have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the trustee in
respect of the guarantee or to direct the exercise of any trust or power
conferred upon the trustee under such guarantee. If the trustee fails to enforce
such guarantee, any holder of preferred securities to which such guarantee
relates may institute a legal proceeding directly against Protective to enforce
such holder's rights under such guarantee, without first instituting a legal
proceeding against the relevant trust, the trustee or any other person or
entity. Notwithstanding the foregoing, if Protective has failed to make a
guarantee payment, a holder of preferred securities may directly institute a
proceeding against Protective for enforcement of the guarantee for such payment.
Protective waives any right or remedy to require that any action be brought
first against such trust or any other person or entity before proceeding
directly against Protective.
STATUS OF THE PREFERRED SECURITIES GUARANTEES
The guarantees will constitute unsecured obligations of Protective and will
rank as follows:
- subordinate and junior in right of payment to all present and future
senior indebtedness, as such term is defined in the subordinated
indenture, see "Description of Debt Securities of
Protective--Subordination under the Subordinated Indenture;"
- equally with:
(1) Protective's guarantees with respect to the common securities of PLC
Capital Trusts III and IV;
(2) subordinated debt securities, see "Description of Debt
Securities--Subordination under the Subordinated Indenture;"
(3) Protective's guarantee of PLC Capital L.L.C.'s 9% Cumulative Monthly
Income Preferred Securities, Series A;
(4) Protective's 9% Subordinated Debentures, due 2024, Series A;
(5) Protective's guarantee of PLC Capital Trust I's 8 1/4% Trust
Originated Preferred Securities;
(6) Protective's guarantee of PLC Capital Trust I's 8 1/4% Trust
Originated Common Securities;
(7) Protective's 8 1/4% Subordinated Debentures, due 2027, Series B;
(8) Protective's guarantee of PLC Capital Trust II's 6 1/2% Trust
Originated Preferred Securities;
(9) Protective's guarantee of PLC Capital Trust II's 6 1/2% Trust
Originated Common Securities;
(10) Protective's 6 1/2% Subordinated Debentures, due February 11, 2003,
Series C; and
(11) any other liabilities or obligations that may have equal ranking by
their terms; and
- senior to Protective's common stock, the most senior preferred or
preference stock now or hereafter issued by Protective and with any
guarantee now or hereafter entered into by Protective in respect to any
preferred or preference stock of any affiliate of Protective.
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The terms of the preferred securities provide that each holder of preferred
securities issued by the applicable trust by acceptance thereof agrees to the
subordination provisions and other terms of the guarantee relating thereto.
The 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 trustee, prior to the occurrence of a default with respect to a
guarantee, undertakes to perform only such duties as are specifically set forth
in such 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 trustee is under no obligation to exercise any
of the powers vested in it by a 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 trustee, upon the occurrence of an event of default under
such guarantee, from exercising the rights and powers vested in it by such
guarantee.
GOVERNING LAW
The guarantees will be governed by and construed in accordance with the
internal laws of the State of New York.
EFFECT OF OBLIGATIONS UNDER THE SUBORDINATED DEBT SECURITIES
AND THE PREFERRED SECURITIES GUARANTEES
As set forth in the declarations of trust, the sole purpose of PLC Capital
Trusts III and IV is to issue the preferred securities and common securities
evidencing undivided beneficial interests in the assets of each of the trusts,
and to invest the proceeds from such issuance and sale in Protective's
subordinated debt securities.
As long as payments of interest and other payments are made when due on the
subordinated debt securities held by the trusts, such payments will be
sufficient to cover distributions and payments due on the preferred securities
and common securities because of the following factors:
- the aggregate principal amount of such subordinated debt securities will
be equal to the sum of the aggregate stated liquidation amount of the
preferred securities and common securities;
- 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;
- Protective shall pay, and the trusts shall not be obligated to pay,
directly or indirectly, all costs, expenses, debt, and obligations of the
trusts, other than with respect to the preferred securities and common
securities; and
- the declaration of trust of each trust further provides that the 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 applicable
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 as and to the extent set forth under
"Description of Preferred Securities Guarantees." If Protective does not make
interest payments on the subordinated debt securities purchased by the
applicable trust, it is expected that the applicable trust will not have
sufficient funds to pay distributions on the preferred
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securities and the guarantee will not apply, since the guarantee covers the
payment of distributions and other payments on the preferred securities only if
and to the extent that Protective has made a payment of interest or principal on
the subordinated debt securities held by the applicable trust as its sole asset.
However, the guarantee, when taken together with Protective's obligations under
the subordinated debt securities and the subordinated indenture and its
obligations under the declaration of trust, including its obligations to pay
costs, expenses, debts and liabilities of the trust, other than with respect to
the preferred securities and common securities, provide a full and unconditional
guarantee, on a subordinated basis, by Protective of amounts due on the
preferred securities.
If Protective fails to make interest or other payments on the subordinated
debt securities when due, taking account of any Extension Period, the
declarations of trust 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 will be
subrogated to the rights of such holder of preferred securities under the
declaration of trust to the extent of any payment made by Protective to such
holder of preferred securities in such direct action. Protective, under the
guarantee, acknowledges that the guarantee trustee shall enforce the guarantee
on behalf of the holders of the preferred securities. If Protective fails to
make payments under the guarantee, the guarantee provides a mechanism whereby
the holders of the preferred securities may direct the trustee to enforce its
rights thereunder. Any holder of preferred securities may institute a legal
proceeding directly against Protective to enforce the guarantee trustee's rights
under the guarantee without first instituting a legal proceeding against the
trust, the guarantee trustee, or any other person or entity.
Protective and each of PLC Capital Trust III and IV believe that the above
mechanisms and obligations, taken together, provide a full and unconditional
guarantee by Protective 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 may issue stock purchase contracts, representing contracts
obligating holders to purchase from Protective, and Protective to sell to the
holders, a specified number of shares of Protective's 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 of Protective or
preferred securities of PLC Capital Trust III or IV 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 to make periodic payments to the holders of the
stock purchase units or vice versa, and such payments may be unsecured or
prefunded 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.
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PLAN OF DISTRIBUTION
Protective may sell any of the debt securities, preferred stock, common
stock, stock purchase contracts and stock purchase units and PLC Capital Trust
III and IV may sell any of the preferred securities, being offered hereby in any
one or more of the following ways from time to time:
- through agents;
- to or through underwriters;
- through dealers; and
- directly by Protective or the trusts, as the case may be, to purchasers.
The distribution of the 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.
Agents designated by Protective or the trusts may solicit offers to purchase
the securities from time to time. The prospectus supplement will name any such
agent involved in the offer or sale of the securities and will set forth any
commissions payable by Protective or the trusts to such agent. 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 securities so offered and sold.
If the securities are sold by means of an underwritten offering, Protective
and/or the trusts will execute an underwriting agreement with an underwriter or
underwriters at the time an agreement for such sale is reached. A prospectus
supplement will be used by the underwriters to make resales of the securities to
the public and will set forth 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. If underwriters are utilized in the sale of
the securities, the 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. The 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 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 will be obligated to purchase all
such securities if any are purchased.
If a dealer is utilized in the sale of the securities, Protective or the
trusts, will sell such securities to the dealer as principal. The dealer may
then resell such 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 securities so
offered and sold. The prospectus supplement will set forth the name of the
dealer and the terms of the transaction.
Protective or the trusts may directly solicit offers to purchase the
securities and may sell such securities 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 prospectus supplement
will describe the terms of any such sales.
Agents, underwriters and dealers may be entitled under relevant agreements
with Protective and/or the trusts to indemnification by Protective and/or the
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.
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Each series of 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 may
elect to list any series of debt securities, preferred stock, stock purchase
contracts or stock purchase units and the trusts may elect to list any series of
preferred securities, on an exchange, but neither Protective nor the trusts
shall be obligated to do so. It is possible that one or more underwriters may
make a market in a series of the 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
securities.
Agents, underwriters and dealers may be customers of, engage in transactions
with, or perform services for, Protective and its subsidiaries (including the
trusts) in the ordinary course of business.
The 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 or the trusts. The prospectus supplement
will identify any remarketing firm and will describe the terms of its agreement,
if any, with Protective or the trusts and its compensation. Remarketing firms
may be deemed to be underwriters, as such term is defined in the Securities Act,
in connection with the securities remarketed thereby. Under agreements which may
be entered into with Protective, Protective and/or the trusts may be required to
provide indemnification or contribution to remarketing firms against certain
civil liabilities, including liabilities under the Securities Act. Remarketing
firms may also be customers of, engage in transactions with or perform services
for Protective and its subsidiaries (including the trusts) in the ordinary
course of business.
If so indicated in the applicable prospectus supplement, Protective or the
trusts, may authorize agents, underwriters or dealers to solicit offers by
certain institutions to purchase the securities from Protective or the trusts,
at the public offering prices set forth in the applicable prospectus supplement
pursuant to delayed delivery contracts providing for payment and delivery on a
specified date or dates. The applicable prospectus supplement will indicate the
commission to be paid to underwriters, dealers and agents soliciting purchases
of the Securities pursuant to contracts accepted by Protective.
LEGAL MATTERS
Unless otherwise indicated in the applicable prospectus supplement, certain
matters of Delaware law relating to the validity of the preferred securities of
PLC Capital Trust III and PLC Capital Trust IV will be passed upon for
Protective and the trusts by Richards, Layton & Finger, P.A., special Delaware
counsel to Protective and the trusts, and the validity of any other securities
offered hereby and of the preferred securities guarantee and the senior debt
securities relating to any preferred securities of the trusts offered hereby
will be passed upon for Protective and the trusts by Deborah J. Long, Senior
Vice President and General Counsel for the Company. Ms. Long may rely upon
Richards, Layton & Finger, P.A., special Delaware counsel to Protective and the
trusts, as to all matters of Delaware law relating to any preferred securities.
EXPERTS
The consolidated balance sheets of Protective as of December 31, 1998 and
1997 and the related consolidated statements of income, share-owners' equity and
cash flows for each of the three years in the period ended December 31, 1998 and
the related financial statement schedules which are incorporated by reference or
included in Protective's Annual Report on Form 10-K for the year ended December
31, 1998 and which have been incorporated by reference in this prospectus, have
been incorporated herein in reliance on the report of PricewaterhouseCoopers
LLP, independent accountants, given on the authority of that firm as experts in
accounting and auditing.
35
<PAGE>
With respect to the unaudited interim financial information for Protective
and subsidiaries for the three-month periods ended March 31, 1999 and 1998
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 incorporated by reference in the registration statement which includes
this prospectus 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
Securities Act.
36
<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
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..................... $ 139,000
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........................................... 90,000
Miscellaneous expenses............................................ 25,000
---------
Total......................................................... $ 472,500
---------
---------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 6.5 of Article VI of Protective's certificate of incorporation
provides that Protective 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 or was serving at the request of Protective 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 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) by reason of the fact that such person is or was an
officer, employee, agent or director of Protective, or is or was serving at the
request of Protective 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,
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful. Protective may indemnify any such person
against expenses (including attorneys' fees) in an action by or in the right of
Protective under the same conditions, except that no indemnification is
permitted without judicial approval if such person is adjudged to be liable to
Protective. To the extent such person is successful on the merits or otherwise
in the defense of any action referred to above, Protective must indemnify him
against the expenses which he actually and reasonably incurred in connection
therewith.
Policies of insurance are maintained by Protective under which directors and
officers of Protective are insured, within the limits and subject to the
limitations of the policies, against certain expenses in connection with the
defense of actions, suits or proceedings, and certain liabilities which might be
imposed as a result of such actions, suits or proceedings, to which they are
parties by reason of being or having been such directors or officers.
II-1
<PAGE>
As permitted by Section 102 (b)(7) of the Delaware General Corporation Law,
Protective's certificate of incorporation also provides that no director shall
be personally liable to Protective 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 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 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 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, Protective 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 has similar agreements with certain of its executive officers under
which Protective 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) 1998 Restated Certificate of Incorporation of Protective (incorporated by reference to Exhibit 3(a)
to Protective's Form 10-K Annual Report for the year ended December 31, 1998).
4(a)(2) Certificate of Designation of Junior Participating Cumulative Preferred Stock of Protective 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)(3) Certificate of Decrease of Shares Designated as Junior Participating Cumulative Preferred Stock of
Protective filed with the Secretary of State of Delaware on August 8, 1995 (incorporated by
reference to Exhibit 3(a)(4) to Protective's Form 10-K Annual Report for the year ended December 31,
1995).
4(b) 1998 Amended and Restated By-Laws of Protective (incorporated by reference to Exhibit 3(b) to
Protective's Form 10-K Annual Report for the period ended December 31, 1998).
4(c) Senior Indenture, dated as of June 1, 1994, between Protective and The Bank of New York, as Trustee
(incorporated by reference to Exhibit 4(g) to Protective's Registration Statement on Form S-3 (No.
33-52831)).
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ----------- ----------------------------------------------------------------------------------------------------
<S> <C>
4(d) Supplemental Indenture No. 1, dated as of July 1, 1994, between Protective and The Bank of New York,
as Trustee (incorporated by reference to Exhibit 4(g) to Protective'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 and The Bank of New
York, as Trustee (incorporated by reference to Exhibit 4(g)(2) to Protective'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 and The Bank of New
York, as Trustee (incorporated by reference to Exhibit 4(g)(3) to Protective'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 and The Bank of New
York, as Trustee (incorporated by reference to Exhibit 4(g)(3) to Protective'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 and The Bank of New
York, as Trustee (incorporated by reference to Exhibit 4(g)(3) to Protective's Current Report on
Form 8-K filed December 6, 1996).
4(i) Subordinated Indenture, dated as of June 1, 1994, between Protective and AmSouth Bank, as Trustee
(incorporated by reference to Exhibit 4(h) to Protective'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 and AmSouth Bank, as Trustee (incorporated by reference to Exhibit 4(h)(1) to
Protective'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 and AmSouth Bank, as Trustee (incorporated by reference to Exhibit 4(l) to Protective'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 and AmSouth Bank, as Trustee (incorporated by reference to Exhibit 4(g) to Protective's
Registration Statement on Form S-3 (No. 333-25027)).
4(m) Supplemental Indenture No. 4 dated as of November 20, 1997, to the Subordinated Indenture between
Protective and AmSouth Bank, as Trustee (incorporated by reference to Exhibit 4(m) to Protective's
Current Report on Form 8-K filed December 5, 1997).
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 (incorporated by reference to Exhibit
4(n) to Protective's Registration Statement on Form S-3 (333-30905).
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 (incorporated by reference to Exhibit
4(o) to Protective's Registration Statement on Form S-3 (333-30905).
4(p) Form of Preferred Security (incorporated by reference to Exhibit 4(q) to Protective's Registration
Statement on Form S-3 (333-30905).
4(q) Form of Preferred Security (incorporated by reference to Exhibit 4(r) to Protective's Registration
Statement on Form S-3 (333-30905).
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ----------- ----------------------------------------------------------------------------------------------------
<S> <C>
4(r) Form of Subordinated Debt Security relating to PLC Capital Trust III (incorporated by reference to
Exhibit 4(t) to Protective's Registration Statement on Form S-3 (333-30905).
4(s) Form of Subordinated Debt Security relating to PLC Capital Trust IV (incorporated by reference to
Exhibit 4(u) to Protective's Registration Statement on Form S-3 (333-30905).
4(t) Form of Guarantee Agreement with respect to Preferred Securities to be issued by PLC Capital Trust
III (incorporated by reference to Exhibit 4(w) to Protective's Registration Statement on Form S-3
(333-30905).
4(u) Form of Guarantee Agreement with respect to Preferred Securities to be issued by PLC Capital Trust
IV (incorporated by reference to Exhibit 4(x) to Protective's Registration Statement on Form S-3
(333-30905).
4(v) Form of Purchase Contract Agreement (including form of related security certificate).*
4(w) Form of Pledge Agreement.*
4(aa) Certificate of Trust of PLC Capital Trust III (incorporated by reference to Exhibit 4(bb) to
Protective's Registration Statement on Form S-3 (333-30905).
4(bb) Certificate of Trust of PLC Capital Trust IV (incorporated by reference to Exhibit 4(cc) to
Protective's Registration Statement on Form S-3 (333-30905).
4(cc) Declaration of Trust of PLC Capital Trust III (incorporated by reference to Exhibit 4(ee) to
Protective's Registration Statement on Form S-3 (333-30905).
4(dd) Declaration of Trust of PLC Capital Trust IV (incorporated by reference to Exhibit 4(ff) to
Protective's Registration Statement on Form S-3 (333-30905).
4(ee) Form of Amended and Restated Declaration of Trust of PLC Capital Trust III (incorporated by
reference to Exhibit 4(hh) to Protective's Registration Statement on Form S-3 (333-30905).
4(ff) Form of Amended and Restated Declaration of Trust of PLC Capital Trust IV (incorporated by reference
to Exhibit 4(ii) to Protective's Registration Statement on Form S-3 (333-30905).
4(gg) Rights Agreement, dated as of August 7, 1995 among Protective and The Bank of New York, as Successor
Rights Agent to AmSouth Bank, as Rights Agent (incorporated by reference to Exhibit 1 to the
Company's Form 8-A filed August 7, 1995).
4(hh) Rights Certificate (incorporated by reference to Exhibit 1 to the Company's Form 8-A filed August 7,
1995).
5(a) Opinion of Deborah J. Long, Esq., Senior Vice President, Secretary and General Counsel, as counsel
to Protective and the PLC Capital Trusts, as to the legality of certain of the Offered Securities.**
5(b) Opinion of Richards, Layton & Finger, P.A., special Delaware counsel to Protective 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.**
15 Letter re unaudited interim financial information.**
23(a) Consent of PricewaterhouseCoopers LLP.**
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ----------- ----------------------------------------------------------------------------------------------------
<S> <C>
23(b) Consent of Deborah J. Long, Esq. (included in Exhibit 5(a)).
23(c) Consent of Richards, Layton & Finger, P.A. (included in Exhibit 5(b)).
23(d) Consent of Debevoise & Plimpton (included in Exhibit 8).
24 Powers 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 and Subordinated Indenture.**
25(b) 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 for the benefit of the
holders of Preferred Securities of PLC Capital Trust III.**
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 for the benefit of the
holders of the Preferred Securities of PLC Capital Trust IV.**
25(d) 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(e) 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
II-5
<PAGE>
(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
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial BONA FIDE offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY REFERENCE.
The undersigned registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
Protective'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 June 15, 1999.
<TABLE>
<S> <C> <C>
PROTECTIVE LIFE CORPORATION
(Registrant)
By: /s/ JOHN D. JOHNS
------------------------------------------
Name: John D. Johns
Title: President, Chief Operating
Officer and Director
</TABLE>
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:
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
- ------------------------------ --------------------------- -------------------
<C> <S> <C>
Chairman of the Board,
/s/ DRAYTON NABERS, JR. Chief Executive Officer
- ------------------------------ and Director (Principal June 15, 1999
Drayton Nabers, Jr. Executive Officer)
President, Chief Operating
/s/ JOHN D. JOHNS Officer and Director
- ------------------------------ (Principal Financial June 15, 1999
John D. Johns Officer)
Vice President and
/s/ JERRY W. DEFOOR Controller and Chief
- ------------------------------ Accounting Officer June 15, 1999
Jerry W. DeFoor (Principal Accounting
Officer)
* Director
- ------------------------------
William J. Cabaniss, Jr.
* Director
- ------------------------------
John J. McMahon, Jr.
* Director
- ------------------------------
A.W. Dahlberg
* Director
- ------------------------------
Ronald L. Kuehn, Jr.
* Director
- ------------------------------
James S. M. French
* Director
- ------------------------------
Robert A. Yellowlees
* Director
- ------------------------------
Elaine L. Chao
</TABLE>
II-7
<PAGE>
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
- ------------------------------ --------------------------- -------------------
<C> <S> <C>
* Director
- ------------------------------
Donald M. James
* Director
- ------------------------------
J. Gary Cooper
</TABLE>
<TABLE>
<S> <C> <C> <C>
*By: /s/ NANCY KANE
-------------------------
Name: Nancy Kane June 15, 1999
Title: Attorney-in-Fact
</TABLE>
II-8
<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 June 15, 1999.
<TABLE>
<S> <C> <C>
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
</TABLE>
II-9
<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 June 15, 1999.
<TABLE>
<S> <C> <C>
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
</TABLE>
II-10
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION PAGE
- ------------- ------------------------------------------------------------------------------------------------- -----
<C> <S> <C>
5(a) Opinion of Deborah J. Long, Esq., Senior Vice President, Secretary and General Counsel, as
counsel to Protective and the PLC Capital Trusts, as to the legality of certain of the Offered
Securities.
5(b) Opinion of Richards, Layton & Finger, P.A., special Delaware counsel to Protective and the PLC
Capital Trusts, as to the legality of certain of the Offered Securities.
12 Computation of Ratios of Consolidated Earnings to Fixed Charges.
15 Letter re unaudited interim financial information.
23(a) Consent of PricewaterhouseCoopers LLP.
23(b) Consent of Deborah J. Long, Esq. (included in Exhibit 5(a)).
23(c) Consent of Richard, Layton & Finger, P.A. (included in Exhibit 5(b)).
24 Powers 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 and Subordinated Indenture.
25(b) 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 for the benefit of the
holders of Preferred Securities of PLC Capital Trust III.
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 for the benefit of the
holders of the Preferred Securities of PLC Capital Trust IV.
25(d) 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(e) 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>
<PAGE>
EXHIBIT 5(a)
[letterhead of Protective Life Corporation]
June 14, 1999
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
PLC Capital Trust III
c/o Protective Life Corporation
2801 Highway 280 South
Birmingham, Alabama 35223
Protective Life Corporation
PLC Capital Trust III
PLC Capital Trust IV
Registration Statement on Form S-3
Ladies and Gentlemen:
As General Counsel at Protective Life Corporation, a Delaware
corporation ("Protective"), I have acted as counsel to Protective and 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 "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") relating to the public offering of up to $500,000,000 in
aggregate principal amount of (i) debt securities of Protective, which may
either be senior debt securities (the "Senior Debt Securities") to be issued
pursuant to a Senior Indenture (the "Senior Indenture") between Protective
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 and
The Bank of New York (as successor by transfer of assets to AmSouth Bank,
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, par value $1.00 per share (the
"Preferred Stock"), (iii) shares of common stock of Protective, par value
$0.50 per share (the "Common Stock"), (iv) stock purchase contracts of
Protective (the "Stock Purchase Contracts"), (v) stock purchase units of
Protective (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 and such 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
<PAGE>
Protective pursuant to a Preferred Securities Guarantee (each, a
"Guarantee", and collectively, the "Guarantees") to be executed by Protective
for the benefit of holders of Preferred Securities of such PLC Capital
Trust.
In so acting, I have examined and relied upon the originals, or copies
certified or otherwise identified to my satisfaction, of such records,
documents, certificates and other instruments as in my judgment are necessary or
appropriate to enable me to render the opinion expressed below.
Based upon the foregoing, I am of the following opinion:
1. Protective 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 and (ii) a Senior Supplemental Indenture has been duly
executed and delivered by Protective and the Senior Trustee and Senior 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 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 enforceable against Protective 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, and (ii) a Subordinated
Supplemental Indenture has been duly executed and delivered by Protective
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 enforceable against Protective 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).
4. When (i) the terms of the Preferred Stock and of its issuance and sale
have been duly established in conformity with Protective 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 and so as to comply with any requirement or
restriction imposed by any court or governmental body having jurisdiction over
Protective, and authorized by all necessary corporate action of Protective,
(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.
<PAGE>
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
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 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 that Protective 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 of
any of the Stock Purchase Contracts and the Stock Purchase Units shall have been
duly authorized by all necessary corporate action of Protective, (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 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 enforceable against Protective 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, (ii) such
Guarantee shall have been duly executed and delivered by Protective, (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 (iv) 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, enforceable against Protective
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).
My opinion expressed above is limited to the laws of the State of Alabama,
the Delaware General Corporation Law, and the federal laws of the United States
of America.
I hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the use of my name under the caption "Legal
Matters" in the Prospectus. In giving such consent, I do not thereby concede
that I am 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/ Deborah J. Long
-----------------------------------------
Deborah J. Long
Senior Vice President and General Counsel
Protective Life Corporation
<PAGE>
EXHIBIT 5(b)
[Letterhead of Richards, Layton & Finger, PA]
June 14, 1999
PLC Capital Trust III
PLC Capital Trust IV
c/o Protective Life Corporation
2801 Highway 280 South
Birmingham, Alabama 35223
Re: 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 III, a Delaware
business trust ("Trust III"), and PLC Capital Trust IV, a Delaware business
trust ("Trust IV") (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 III, as filed with the Secretary of
State on July 1, 1997;
(b) The Certificate of Trust of Trust IV, as filed with the Secretary of
State on July 1, 1997;
(c) The Declaration of Trust of Trust III, dated as of July 1, 1997 among
the Company and the trustees of Trust III named therein;
(d) The Declaration of Trust of Trust IV, dated as of July 1, 1997 among
the Company and the trustees of Trust IV named therein;
(e) The Registration Statement (the "Registration Statement") on Form S-3,
including a preliminary prospectus (the "Prospectus") relating to, among other
things, the Preferred Securities of the Trusts representing preferred undivided
beneficial interests in the assets of the Trusts (each, a "Preferred
<PAGE>
PLC Capital Trust III
PLC Capital Trust IV
June 14, 1999
Page 2
Security" and collectively, the "Preferred Securities"), filed by the Company
and the Trusts with the Securities and Exchange Commission on or about
June 14, 1999;
(f) 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"),
incorporated by reference as an exhibit to the Registration Statement; and
(g) A Certificate of Good Standing for each of the Trusts, dated
June 14, 1999, 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 (g) above. In particular, we
have not reviewed any document (other than the documents listed in paragraphs
(a) through (g) 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 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.
<PAGE>
PLC Capital Trust III
PLC Capital Trust IV
June 14, 1999
Page 3
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:
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.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
EAM
<PAGE>
EXHIBIT 12
<TABLE>
<CAPTION>
THREE MONTHS
YEAR ENDED DECEMBER 31, ENDED MARCH 31,
1994 1995 1996 1997 1998 1998 1999
<S> <C> <C> <C> <C> <C> <C> <C>
COMPUTATION OF RATIO OF
CONSOLIDATED EARNINGS
TO FIXED CHARGES
Income before income tax $ 106,173 $ 121,034 $ 139,741 $179,373 $ 220,724 $ 50,026 $ 61,949
Add interest expense 7,766 9,589 10,063 10,768 13,512 2,193 3,155
---------- ---------- --------- -------- ----------- ---------- ---------
Earnings before interest and taxes $ 113,93 $ 130,623 $ 149,804 $190,141 $ 234,236 $ 52,219 $ 65,104
---------- ---------- --------- -------- ----------- ---------- ---------
---------- ---------- --------- -------- ----------- ---------- ---------
Earnings before interest and taxes
divided by interest expense 14.7 13.6 14.9 17.7 17.3 23.8 20.6
---------- ---------- --------- -------- ----------- ---------- ---------
---------- ---------- --------- -------- ----------- ---------- ---------
COMPUTATION OF RATIO OF
CONSOLIDATED EARNINGS
TO COMBINED FIXED
CHARGES AND DISTRIBUTIONS
ON THE GUARANTEED PREFERRED
BENEFICIAL INTERESTS (1)
Income before income tax $ 106,173 $ 121,034 $ 139,741 $179,373 $ 220,724 $ 50,026 $ 61,949
Add interest expense 7,766 9,589 10,063 10,768 13,512 2,193 3,155
Earnings before interest and taxes $ 113,939 $ 130,623 $ 149,804 $190,141 $ 234,236 $ 52,219 $ 65,104
---------- ---------- --------- -------- ----------- ---------- ---------
---------- ---------- --------- -------- ----------- ---------- ---------
Earnings before interest and taxes
divided by interest expense and
distributions on guaranteed
preferred beneficial
interests (1) 10.8 9.0 10.0 9.2 7.3 7.6 8.3
---------- ---------- --------- -------- ----------- ---------- ---------
---------- ---------- --------- -------- ----------- ---------- ---------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
THREE MONTHS
YEAR ENDED DECEMBER 31, ENDED MARCH 31,
1994 1995 1996 1997 1998 1998 1999
<S> <C> <C> <C> <C> <C> <C> <C>
COMPUTATION OF RATIO OF
CONSOLIDATED EARNINGS
TO COMBINED FIXED
CHARGES, DISTRIBUTIONS
ON THE GUARANTEED PREFERRED
BENEFICIAL INTERESTS (1),
AND INTEREST CREDITED ON
INVESTMENT PRODUCTS
Income before income tax $ 106,173 $ 121,034 $ 139,741 $179,373 $ 220,724 $ 50,026 $ 61,949
Add interest expense 7,766 9,589 10,063 10,768 13,512 2,193 3,155
Add interest credited on
investment products 260,081 286,710 280,377 299,004 352,721 84,729 85,361
---------- ---------- --------- -------- ----------- ---------- ---------
Earnings before interest and taxes $ 374,021 $ 417,333 $ 430,181 $489,145 $ 586,957 $ 136,948 $ 150,465
---------- ---------- --------- -------- ----------- ---------- ---------
---------- ---------- --------- -------- ----------- ---------- ---------
Earnings before interest and taxes
divided by interest expense,
distributions on the guaranteed
preferred beneficial
interests (1), and interest
credited on investment products 1.4 1.4 1.5 1.5 1.5 1.5 1.6
---------- ---------- --------- -------- ----------- ---------- ---------
---------- ---------- --------- -------- ----------- ---------- ---------
</TABLE>
(1) Guaranteed preferred beneficial interests in Protective's subordinated
debenture consist of 9% Cumulative Monthly Income Preferred Securities,
Series A (MIPS), 8 1/2% Trust Originated Preferred Securities (TOPrS), and 6
1/2% Trust Originated Preferred Securities a component of the 6 1/5% FELINE
PRIDES (PRIDES). Distributions on the MIPS were $2,764 in 1994, $4,950 in
1995, 1996, 1997 and 1998 and $1,237 in both of the three month periods ended
March 31, 1998 and 1999. Distributions on the TOPrS were $4,162 in 1997,
$6,190 in 1998, and $1,548 in both of the three month periods ended March 31,
1998 and 1999; there were no TOPrS outstanding during any prior period.
Distributions on the PRIDES were $726 in 1997, $7,472 in 1998, and $1,868 in
both of the three month periods ended March 31, 1998 and 1999; there were no
PRIDES outstanding during any prior period.
<PAGE>
EXHIBIT 15
June 16, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Commissioners:
We are aware that our report dated April 23, 1999 on our review of interim
financial information of Protective Life Corporation (the "Company") for the
periods ended March 31, 1999 and 1998, and included in the Company's quarterly
report on Form 10-Q for the quarters then ended, is incorporated by reference in
its Registration Statement dated June 16, 1999.
Very truly yours,
/s/ PricewaterhouseCoopers LLP
<PAGE>
EXHIBIT 23(a)
[LETTERHEAD OF PRICEWATERHOUSECOOPERS LLP]
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. 333- ) of our
reports dated February 11, 1999, on our audits of the consolidated financial
statements and financial statement schedules of Protective Life Corporation and
subsidiaries (the Company) as of December 31, 1998 and 1997 and for the years
ended December 31, 1998, 1997, and 1996, which reports are 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."
PricewaterhouseCoopers LLP
Birmingham, Alabama
June 16, 1999
<PAGE>
EXHIBIT 24
PROTECTIVE LIFE CORPORATION
2801 Highway 280 South
Birmingham, Alabama 35223
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned Officer and/or Director
of Protective Life Corporation, a Delaware corporation (the "Corporation"),
hereby constitutes and appoints John D. Johns, Deborah J. Long and Nancy Kane,
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 his respective
name as Officer and/or Director of the Corporation (both in such capacity and in
capacities necessary for the execution of documents in his name 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,
PLC Capital Trusts I, II, III and/or IV (business trusts organized under the
laws of the State of Delaware and subsidiaries of the Corporation), or of any
other trust, partnership or other entity established by the Corporation in
connection with or for the purpose of facilitating the offering or issuance of
securities (together with PLC Capital L.L.C., 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 other 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 other PLC Entity, and related guarantees or
backup undertakings of the Corporation to be offered to the public, and the
undersigned hereby ratifies and confirms all acts taken by such agents and
attorneys-in-fact, or any one or more of them, as herein authorized.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal this
first day of March, 1999.
WITNESS:
/s/ Deborah J. Long
- -------------------------------
Deborah J. Long
/s/ Drayton Nabers, Jr.
-----------------------------------
Drayton Nabers, Jr.
(Chairman of the Board,
Chief Executive Officer
and Director)
<PAGE>
EXHIBIT 24
PROTECTIVE LIFE CORPORATION
2801 Highway 280 South
Birmingham, Alabama 35223
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned Officer and/or Director
of Protective Life Corporation, a Delaware corporation (the "Corporation"),
hereby constitutes and appoints John D. Johns, Deborah J. Long and Nancy Kane,
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 his respective
name as Officer and/or Director of the Corporation (both in such capacity and in
capacities necessary for the execution of documents in his name 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,
PLC Capital Trusts I, II, III and/or IV (business trusts organized under the
laws of the State of Delaware and subsidiaries of the Corporation), or of any
other trust, partnership or other entity established by the Corporation in
connection with or for the purpose of facilitating the offering or issuance of
securities (together with PLC Capital L.L.C., 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 other 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 other PLC Entity, and related guarantees or
backup undertakings of the Corporation to be offered to the public, and the
undersigned hereby ratifies and confirms all acts taken by such agents and
attorneys-in-fact, or any one or more of them, as herein authorized.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal this
first day of March, 1999.
WITNESS:
/s/ Deborah J. Long
- -------------------------------
Deborah J. Long
/s/ John D. Johns
-----------------------------------
John D. Johns
(President, Chief Operating Officer
and Director)
<PAGE>
EXHIBIT 24
PROTECTIVE LIFE CORPORATION
2801 Highway 280 South
Birmingham, Alabama 35223
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned Officer and/or Director
of Protective Life Corporation, a Delaware corporation (the "Corporation"),
hereby constitutes and appoints John D. Johns, Deborah J. Long and Nancy Kane,
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 his respective
name as Officer and/or Director of the Corporation (both in such capacity and in
capacities necessary for the execution of documents in his name 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,
PLC Capital Trusts I, II, III and/or IV (business trusts organized under the
laws of the State of Delaware and subsidiaries of the Corporation), or of any
other trust, partnership or other entity established by the Corporation in
connection with or for the purpose of facilitating the offering or issuance of
securities (together with PLC Capital L.L.C., 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 other 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 other PLC Entity, and related guarantees or
backup undertakings of the Corporation to be offered to the public, and the
undersigned hereby ratifies and confirms all acts taken by such agents and
attorneys-in-fact, or any one or more of them, as herein authorized.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal this
first day of March, 1999.
WITNESS:
/s/ Deborah J. Long
- -------------------------------
Deborah J. Long
/s/ Jerry W. DeFoor
-----------------------------------
Jerry W. DeFoor
(Vice President, Controller
and Chief Accounting Officer)
<PAGE>
EXHIBIT 24
PROTECTIVE LIFE CORPORATION
2801 Highway 280 South
Birmingham, Alabama 35223
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned Officer and/or Director
of Protective Life Corporation, a Delaware corporation (the "Corporation"),
hereby constitutes and appoints John D. Johns, Deborah J. Long and Nancy Kane,
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 his respective
name as Officer and/or Director 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, PLC Capital Trusts I, II, III and/or IV (business trusts organized
under the laws of the State of Delaware and subsidiaries of the Corporation), or
of any other trust, partnership or other entity established by the Corporation
in connection with or for the purpose of facilitating the offering or issuance
of securities (together with PLC Capital L.L.C., 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 other 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 other PLC Entity, and related guarantees or
backup undertakings of the Corporation to be offered to the public, and the
undersigned hereby ratifies and confirms all acts taken by such agents and
attorneys-in-fact, or any one or more of them, as herein authorized.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal this
first day of March, 1999.
WITNESS:
/s/ Deborah J. Long
- -------------------------------
Deborah J. Long
/s/ William J. Rushton, III
-----------------------------------
William J. Rushton, III
(Chairman Emeritus and Director)
<PAGE>
EXHIBIT 24
PROTECTIVE LIFE CORPORATION
2801 Highway 280 South
Birmingham, Alabama 35223
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned Officer and/or Director
of Protective Life Corporation, a Delaware corporation (the "Corporation"),
hereby constitutes and appoints John D. Johns, Deborah J. Long and Nancy Kane,
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 his respective
name as Officer and/or Director of the Corporation (both in such capacity and in
capacities necessary for the execution of documents in his name 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,
PLC Capital Trusts I, II, III and/or IV (business trusts organized under the
laws of the State of Delaware and subsidiaries of the Corporation), or of any
other trust, partnership or other entity established by the Corporation in
connection with or for the purpose of facilitating the offering or issuance of
securities (together with PLC Capital L.L.C., 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 other 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 other PLC Entity, and related guarantees or
backup undertakings of the Corporation to be offered to the public, and the
undersigned hereby ratifies and confirms all acts taken by such agents and
attorneys-in-fact, or any one or more of them, as herein authorized.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal this
first day of March, 1999.
WITNESS:
/s/ Deborah J. Long
- -------------------------------
Deborah J. Long
/s/ William J. Cabaniss, Jr.
-----------------------------------
William J. Cabaniss, Jr.
(Director)
<PAGE>
EXHIBIT 24
PROTECTIVE LIFE CORPORATION
2801 Highway 280 South
Birmingham, Alabama 35223
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned Officer and/or Director
of Protective Life Corporation, a Delaware corporation (the "Corporation"),
hereby constitutes and appoints John D. Johns, Deborah J. Long and Nancy Kane,
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 his respective
name as Officer and/or Director of the Corporation (both in such capacity and in
capacities necessary for the execution of documents in his name 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,
PLC Capital Trusts I, II, III and/or IV (business trusts organized under the
laws of the State of Delaware and subsidiaries of the Corporation), or of any
other trust, partnership or other entity established by the Corporation in
connection with or for the purpose of facilitating the offering or issuance of
securities (together with PLC Capital L.L.C., 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 other 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 other PLC Entity, and related guarantees or
backup undertakings of the Corporation to be offered to the public, and the
undersigned hereby ratifies and confirms all acts taken by such agents and
attorneys-in-fact, or any one or more of them, as herein authorized.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal this
first day of March, 1999.
WITNESS:
/s/ Deborah J. Long
- -------------------------------
Deborah J. Long
/s/ John J. McMahon, Jr.
-----------------------------------
John J. McMahon, Jr.
(Director)
<PAGE>
EXHIBIT 24
PROTECTIVE LIFE CORPORATION
2801 Highway 280 South
Birmingham, Alabama 35223
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned Officer and/or Director
of Protective Life Corporation, a Delaware corporation (the "Corporation"),
hereby constitutes and appoints John D. Johns, Deborah J. Long and Nancy Kane,
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 his respective
name as Officer and/or Director of the Corporation (both in such capacity and in
capacities necessary for the execution of documents in his name 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,
PLC Capital Trusts I, II, III and/or IV (business trusts organized under the
laws of the State of Delaware and subsidiaries of the Corporation), or of any
other trust, partnership or other entity established by the Corporation in
connection with or for the purpose of facilitating the offering or issuance of
securities (together with PLC Capital L.L.C., 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 other 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 other PLC Entity, and related guarantees or
backup undertakings of the Corporation to be offered to the public, and the
undersigned hereby ratifies and confirms all acts taken by such agents and
attorneys-in-fact, or any one or more of them, as herein authorized.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal this
first day of March, 1999.
WITNESS:
/s/ Deborah J. Long
- -------------------------------
Deborah J. Long
/s/ A. W. Dahlberg
-----------------------------------
A. W. Dahlberg
(Director)
<PAGE>
EXHIBIT 24
PROTECTIVE LIFE CORPORATION
2801 Highway 280 South
Birmingham, Alabama 35223
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned Officer and/or Director
of Protective Life Corporation, a Delaware corporation (the "Corporation"),
hereby constitutes and appoints John D. Johns, Deborah J. Long and Nancy Kane,
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 his respective
name as Officer and/or Director of the Corporation (both in such capacity and in
capacities necessary for the execution of documents in his name 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,
PLC Capital Trusts I, II, III and/or IV (business trusts organized under the
laws of the State of Delaware and subsidiaries of the Corporation), or of any
other trust, partnership or other entity established by the Corporation in
connection with or for the purpose of facilitating the offering or issuance of
securities (together with PLC Capital L.L.C., 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 other 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 other PLC Entity, and related guarantees or
backup undertakings of the Corporation to be offered to the public, and the
undersigned hereby ratifies and confirms all acts taken by such agents and
attorneys-in-fact, or any one or more of them, as herein authorized.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal this
first day of March, 1999.
WITNESS:
/s/ Deborah J. Long
- -------------------------------
Deborah J. Long
/s/ Ronald L. Kuehn, Jr.
-----------------------------------
Ronald L. Kuehn, Jr.
(Director)
<PAGE>
EXHIBIT 24
PROTECTIVE LIFE CORPORATION
2801 Highway 280 South
Birmingham, Alabama 35223
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned Officer and/or Director
of Protective Life Corporation, a Delaware corporation (the "Corporation"),
hereby constitutes and appoints John D. Johns, Deborah J. Long and Nancy Kane,
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 his respective
name as Officer and/or Director of the Corporation (both in such capacity and in
capacities necessary for the execution of documents in his name 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,
PLC Capital Trusts I, II, III and/or IV (business trusts organized under the
laws of the State of Delaware and subsidiaries of the Corporation), or of any
other trust, partnership or other entity established by the Corporation in
connection with or for the purpose of facilitating the offering or issuance of
securities (together with PLC Capital L.L.C., 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 other 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 other PLC Entity, and related guarantees or
backup undertakings of the Corporation to be offered to the public, and the
undersigned hereby ratifies and confirms all acts taken by such agents and
attorneys-in-fact, or any one or more of them, as herein authorized.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal this
first day of March, 1999.
WITNESS:
/s/ Deborah J. Long
- -------------------------------
Deborah J. Long
/s/ Herbert A. Sklenar
-----------------------------------
Herbert A. Sklenar
(Director)
<PAGE>
EXHIBIT 24
PROTECTIVE LIFE CORPORATION
2801 Highway 280 South
Birmingham, Alabama 35223
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned Officer and/or Director
of Protective Life Corporation, a Delaware corporation (the "Corporation"),
hereby constitutes and appoints John D. Johns, Deborah J. Long and Nancy Kane,
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 his respective
name as Officer and/or Director of the Corporation (both in such capacity and in
capacities necessary for the execution of documents in his name 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,
PLC Capital Trusts I, II, III and/or IV (business trusts organized under the
laws of the State of Delaware and subsidiaries of the Corporation), or of any
other trust, partnership or other entity established by the Corporation in
connection with or for the purpose of facilitating the offering or issuance of
securities (together with PLC Capital L.L.C., 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 other 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 other PLC Entity, and related guarantees or
backup undertakings of the Corporation to be offered to the public, and the
undersigned hereby ratifies and confirms all acts taken by such agents and
attorneys-in-fact, or any one or more of them, as herein authorized.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal this
first day of March, 1999.
WITNESS:
/s/ Deborah J. Long
- -------------------------------
Deborah J. Long
/s/ James S. M. French
-----------------------------------
James S. M. French
(Director)
<PAGE>
EXHIBIT 24
PROTECTIVE LIFE CORPORATION
2801 Highway 280 South
Birmingham, Alabama 35223
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned Officer and/or Director
of Protective Life Corporation, a Delaware corporation (the "Corporation"),
hereby constitutes and appoints John D. Johns, Deborah J. Long and Nancy Kane,
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 his respective
name as Officer and/or Director of the Corporation (both in such capacity and in
capacities necessary for the execution of documents in his name 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,
PLC Capital Trusts I, II, III and/or IV (business trusts organized under the
laws of the State of Delaware and subsidiaries of the Corporation), or of any
other trust, partnership or other entity established by the Corporation in
connection with or for the purpose of facilitating the offering or issuance of
securities (together with PLC Capital L.L.C., 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 other 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 other PLC Entity, and related guarantees or
backup undertakings of the Corporation to be offered to the public, and the
undersigned hereby ratifies and confirms all acts taken by such agents and
attorneys-in-fact, or any one or more of them, as herein authorized.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal this
first day of March, 1999.
WITNESS:
/s/ Deborah J. Long
- -------------------------------
Deborah J. Long
/s/ Robert A. Yellowlees
-----------------------------------
Robert A. Yellowlees
(Director)
<PAGE>
EXHIBIT 24
PROTECTIVE LIFE CORPORATION
2801 Highway 280 South
Birmingham, Alabama 35223
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned Officer and/or Director
of Protective Life Corporation, a Delaware corporation (the "Corporation"),
hereby constitutes and appoints John D. Johns, Deborah J. Long and Nancy Kane,
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 her respective
name as Officer and/or Director of the Corporation (both in such capacity and in
capacities necessary for the execution of documents in her name 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,
PLC Capital Trusts I, II, III and/or IV (business trusts organized under the
laws of the State of Delaware and subsidiaries of the Corporation), or of any
other trust, partnership or other entity established by the Corporation in
connection with or for the purpose of facilitating the offering or issuance of
securities (together with PLC Capital L.L.C., 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 other 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 other PLC Entity, and related guarantees or
backup undertakings of the Corporation to be offered to the public, and the
undersigned hereby ratifies and confirms all acts taken by such agents and
attorneys-in-fact, or any one or more of them, as herein authorized.
IN WITNESS WHEREOF, the undersigned has hereunto set her hand and seal this
first day of March, 1999.
WITNESS:
/s/ Deborah J. Long
- -------------------------------
Deborah J. Long
/s/ Elaine L. Chao
-----------------------------------
Elaine L. Chao
(Director)
<PAGE>
EXHIBIT 24
PROTECTIVE LIFE CORPORATION
2801 Highway 280 South
Birmingham, Alabama 35223
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned Officer and/or Director
of Protective Life Corporation, a Delaware corporation (the "Corporation"),
hereby constitutes and appoints John D. Johns, Deborah J. Long and Nancy Kane,
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 his respective
name as Officer and/or Director of the Corporation (both in such capacity and in
capacities necessary for the execution of documents in his name 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,
PLC Capital Trusts I, II, III and/or IV (business trusts organized under the
laws of the State of Delaware and subsidiaries of the Corporation), or of any
other trust, partnership or other entity established by the Corporation in
connection with or for the purpose of facilitating the offering or issuance of
securities (together with PLC Capital L.L.C., 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 other 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 other PLC Entity, and related guarantees or
backup undertakings of the Corporation to be offered to the public, and the
undersigned hereby ratifies and confirms all acts taken by such agents and
attorneys-in-fact, or any one or more of them, as herein authorized.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal this
first day of March, 1999.
WITNESS:
/s/ Deborah J. Long
- -------------------------------
Deborah J. Long
/s/ Donald M. James
-----------------------------------
Donald M. James
(Director)
<PAGE>
EXHIBIT 24
PROTECTIVE LIFE CORPORATION
2801 Highway 280 South
Birmingham, Alabama 35223
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned Officer and/or Director
of Protective Life Corporation, a Delaware corporation (the "Corporation"),
hereby constitutes and appoints John D. Johns, Deborah J. Long and Nancy Kane,
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 his respective
name as Officer and/or Director of the Corporation (both in such capacity and in
capacities necessary for the execution of documents in his name 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,
PLC Capital Trusts I, II, III and/or IV (business trusts organized under the
laws of the State of Delaware and subsidiaries of the Corporation), or of any
other trust, partnership or other entity established by the Corporation in
connection with or for the purpose of facilitating the offering or issuance of
securities (together with PLC Capital L.L.C., 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 other 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 other PLC Entity, and related guarantees or
backup undertakings of the Corporation to be offered to the public, and the
undersigned hereby ratifies and confirms all acts taken by such agents and
attorneys-in-fact, or any one or more of them, as herein authorized.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal this
first day of March, 1999.
WITNESS:
/s/ Deborah J. Long
- -------------------------------
Deborah J. Long
/s/ J. Gary Cooper
-----------------------------------
J. Gary Cooper
(Director)
<PAGE>
EXHIBIT 25(a)
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 if (I.R.S. Employer
not a U.S. national bank) Identification Number)
48 WALL STREET 10286
NEW YORK, NEW YORK (Zip Code)
(Address of principal executive offices)
PROTECTIVE LIFE CORPORATION
(Exact name of obligor as specified in its charter)
DELAWARE 95-2492236
(State or other jurisdiction of (I.R.S. Employer
Incorporation or organization) Identification Number)
2801 HIGHWAY 280 SOUTH
BIRMINGHAM, ALABAMA 35223
(Address of principal executive offices) (Zip code)
DEBT SECURITIES
(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.
Superintendent of Banks of the State of New York, 2 Rector St.,
New York, NY 10006
Federal Reserve Bank of New York, 33 Liberty Plaza, New York, NY 10045
Federal Deposit Insurance Corporation, Washington, D.C. 20429
New York Clearing House Association, New York, NY 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
ITEM 3. VOTING SECURITIES OF THE TRUSTEE.
Not applicable.
ITEM 4. TRUSTEESHIPS UNDER OTHER INDENTURES.
Not applicable.
ITEM 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR
OR UNDERWRITERS.
Not applicable.
ITEM 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS
OFFICIALS.
Not applicable.
ITEM 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR
OFFICIALS.
Not applicable.
ITEM 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE.
Not applicable.
ITEM 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
Not applicable.
<PAGE>
ITEM 10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF CERTAIN
AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
Not applicable.
ITEM 11. OWNERSHIP OR HOLDINGS BY THE 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.
Not applicable.
ITEM 14. AFFILIATIONS WITH THE UNDERWRITERS.
Not applicable.
ITEM 15. FOREIGN TRUSTEE.
Not applicable.
ITEM 16. LIST OF EXHIBITS.
List below all exhibits filed as a part of this statement of
eligibility. Exhibits identified in parenthesis below, already 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).
2. See Exhibit 1 to Form T-1.
3. See Exhibit 1 to Form T-1.
4. A copy of the existing bylaws of the trustee (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
5. Not applicable.
<PAGE>
6. Consent of the trustee required by Section 321(b) of the Act.
7. A copy of the latest report of condition of the trustee as of the
close of business on March 31, 1999, published pursuant to the
requirements of the Comptroller of the Currency.
8. Not applicable.
9. Not applicable.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 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 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 26th day of
May, 1999.
THE BANK OF NEW YORK
By: The Bank of New York Trust Company of Florida,
N.A., as Agent
BY: /s/ Charles S. Northen, IV
-----------------------------------------
Charles S. Northen, IV
Vice President
<PAGE>
EXHIBIT 6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321 (b) of the Trust Indenture Act
of 1939, in connection with the proposed issue of 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 May 26, 1999.
THE BANK OF NEW YORK
By: The Bank of New York Trust Company of Florida, N.A.
as Agent
By: /s/ Charles S. Northen, IV
--------------------------------------------
Charles S. Northen, IV
Vice President
<PAGE>
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business March 31, 1999,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin . . . . . . . . $ 4,508,742
Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . 4,425,071
Securities:
Held-to-maturity securities . . . . . . . . . . . . . . . . . . . . 836,304
Available-for-sale securities . . . . . . . . . . . . . . . . . . . 4,047,851
Federal funds sold and Securities
purchased under agreements to resell . . . . . . . . . . . . . . . 1,743,269
Loans and lease financing receivables:
Loans and leases, net of unearned income. . . . 39,349,679
LESS: Allowance for loan and lease losses . . . 603,025
LESS: Allocated transfer risk reserve . . . . . 15,906
Loans and leases, net of unearned income,
allowance, and reserve . . . . . . . . . . . . . . . . . . . . 38,730,748
Trading Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,571,372
Premises and fixed assets (including capitalized leases) . . . . . . . 685,674
Other real estate owned . . . . . . . . . . . . . . . . . . . . . . . 10,331
Investments in unconsolidated subsidiaries and associated companies . 182,449
Customers' liability to this bank on acceptances outstanding . . . . . 1,184,822
Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . 1,129,636
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,632,309
------------
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $61,688,578
------------
------------
CONTINUED ON NEXT PAGE
<PAGE>
<CAPTION>
Dollar Amounts
LIABILITIES in Thousands
<S> <C>
Deposits:
In domestic offices . . . . . . . . . . . . . . . . . . . . . . $25,731,036
Noninterest-bearing . . . . . . . . . . . . 10,252,589
Interest-bearing . . . . . . . . . . . . . 15,478,447
In foreign offices, Edge and Agreement
subsidiaries and IBFs . . . . . . . . . . . . . . . . . . . 18,756,302
Noninterest-bearing . . . . . . . . . . . 111,386
Interest-bearing . . . . . . . . . . . . . 18,644,916
Federal funds purchased and Securities sold
under agreements to repurchase . . . . . . . . . . . . . . 3,276,362
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . 230,671
Trading liabilities . . . . . . . . . . . . . . . . . . . . . . . 1,554,493
Other borrowed money:
With remaining maturity of one year or less . . . . . . . . . . 1,154,502
With remaining maturity of more than
one year through three years . . . . . . . . . . . . . . . 465
With remaining maturity of more than three years . . . . . . . 31,080
Bank's liability on acceptances executed and outstanding . . . . . 1,185,364
Subordinated notes and debentures . . . . . . . . . . . . . . . . 1,308,000
Other liabilities . . . . . . . . . . . . . . . . . . . . . . . . 2,743,590
-------------
Total Liabilities . . . . . . . . . . . . . . . . . . . . . . . . 55,971,865
-------------
EQUITY CAPITAL
Common stock . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,135,284
Surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 764,443
Undivided profits and capital reserves . . . . . . . . . . . . . . 3,807,697
Net unrealized holding gains (losses) on available-for-sale securities 44,106
Cumulative foreign currency translation adjustments . . . . . . . ( 34,817)
-------------
Total equity capital . . . . . . . . . . . . . . . . . . . . . . . 5,716,713
-------------
Total liabilities and equity capital . . . . . . . . . . . . . . . $61,688,578
-------------
-------------
</TABLE>
I, Thomas J. Mastro, 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.
Thomas J. Mastro
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.
Thomas A. Renyi )
<PAGE>
Alan R. Griffith ) Directors
Gerald L. Hassell )
<PAGE>
EXHIBIT 25(b)
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. Carlist
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 24th day
of May, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Norma P. Closs By: /s/ James P. Lawler
-------------------------------- ------------------------------
Assistant Secretary Name: James P. Lawler
Title: Vice President
<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 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,
<PAGE>
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.
(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.
2
<PAGE>
(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 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.
3
<PAGE>
(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.
(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 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
4
<PAGE>
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 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,
5
<PAGE>
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.
(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
6
<PAGE>
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 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.
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EIGHTH: - This Act shall be deemed and taken to be a private Act.
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) (1) 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
(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
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(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 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
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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.
(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
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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
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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 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.
<PAGE>
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 1. 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 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
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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.
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.
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(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 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
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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 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.
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
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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 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
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"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.
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-
7
<PAGE>
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 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.
8
<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: May 24, 1999 By: /s/ James P. Lawler
--------------------------------------
Name: James P. Lawler
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 December 31, 1998.
------------
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins . . . . . . . . . . .194,839
Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Held-to-maturity securities. . . . . . . . . . . . . . . . . . . . . . . . . 73,911
Available-for-sale securities. . . . . . . . . . . . . . . . . . . . . . . .1,228,194
Federal funds sold and securities purchased under agreements to resell . . . .203,500
Loans and lease financing receivables:
Loans and leases, net of unearned income. . . . . . . . . . . . . . . .4,167,235
LESS: Allowance for loan and lease losses. . . . . . . . . . . . . . . . 66,897
LESS: Allocated transfer risk reserve. . . . . . . . . . . . . . . . . . . . .0
Loans and leases, net of unearned income, allowance, and reserve. . . .4,100,338
Assets held in trading accounts. . . . . . . . . . . . . . . . . . . . . . . . . . .0
Premises and fixed assets (including capitalized leases) . . . . . . . . . . .139,079
Other real estate owned. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,532
Investments in unconsolidated subsidiaries and associated companies. . . . . . .1,052
Customers' liability to this bank on acceptances outstanding . . . . . . . . . . . .0
Intangible assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,047
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98,867
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6,044,359
CONTINUED ON NEXT PAGE
<PAGE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices. . . . . . . . . . . . . . . . . . . . . . . . . . . . .4,474,659
Noninterest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . .1,037,549
Interest-bearing. . . . . . . . . . . . . . . . . . . . . . . . . . . .3,437,110
Federal funds purchased and Securities sold under agreements
to repurchase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 390,060
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . . . . . 18,944
Trading liabilities (from Schedule RC-D) . . . . . . . . . . . . . . . . . . . . . .0
Other borrowed money:. . . . . . . . . . . . . . . . . . . . . . . . . . . . .///////
With original maturity of one year or less. . . . . . . . . . . . . . . .555,000
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) . . . . . . . . . . . . . . . . . . . 90,951
Total liabilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5,572,614
</TABLE>
<TABLE>
<CAPTION>
EQUITY CAPITAL
<S> <C>
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 . . . . . . . . . . . . . . . . . . . .403,264
Net unrealized holding gains (losses) on available-for-sale securities . . . . 5,863
Total equity capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . .471,745
Total liabilities, limited-life preferred stock, and equity capital. . . . .6,044,359
</TABLE>
2
<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 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 24th day
of May, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Norma P. Closs By: /s/ James P. Lawler
---------------------------- ------------------------------
Assistant Secretary Name: James P. Lawler
Title: Vice President
H:\...\trinact\t1\plccapg4.wpd
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 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
<PAGE>
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.
(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
<PAGE>
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 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,
3
<PAGE>
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.
(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 stock and whether such dividends
shall
4
<PAGE>
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 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.
5
<PAGE>
(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.
(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
6
<PAGE>
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 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.
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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.
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) (1) 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
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$1,000,000 or more, or
(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 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
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(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.
(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
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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 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.
<PAGE>
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 1. 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 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
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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.
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
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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 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
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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 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.
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
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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 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:
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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.
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.
7
<PAGE>
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 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.
8
<PAGE>
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.
9
<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: May 24, 1999 By: /s/ James P. Lawler
----------------------------------
Name: James P. Lawler
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 December 31, 1998.
------------
ASSETS
Thousands of dollars
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins. . . . . . . . .194,839
Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . . . .0
Held-to-maturity securities . . . . . . . . . . . . . . . . . . . . .. 73,911
Available-for-sale securities . . . . . . . . . . . . . . . . . . . . 1,228,194
Federal funds sold and securities purchased under agreements to resell. .203,500
Loans and lease financing receivables:
Loans and leases, net of unearned income. . . . . . 4,167,235
LESS: Allowance for loan and lease losses. . . . . . .66,897
LESS: Allocated transfer risk reserve. . . . . . . . . . . 0
Loans and leases, net of unearned income, allowance, and reserve. 4,100,338
Assets held in trading accounts . . . . . . . . . . . . . . . . . . . . . . . 0
Premises and fixed assets (including capitalized leases). . . . . . . . .139,079
Other real estate owned . . . . . . . . . . . . . . . . . . . . . . . . 1,532
Investments in unconsolidated subsidiaries and associated companies . . . 1,052
Customers' liability to this bank on acceptances outstanding. . . . . . . . . 0
Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3,047
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98,867
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6,044,359
CONTINUED ON NEXT PAGE
<PAGE>
LIABILITIES
Deposits:
In domestic offices. . . . . . . . . . . . . . . . . . . 4,474,659
Noninterest-bearing . . . . . . . . . . . . . . . . 1,037,549
Interest-bearing. . . . . . . . . . . . . . . . . . 3,437,110
Federal funds purchased and Securities sold under agreements
to repurchase. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 390,060
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . . 18,944
Trading liabilities (from Schedule RC-D) . . . . . . . . . . . . . . . . . . . 0
Other borrowed money:. . . . . . . . . . . . . . . . . . . . . . . . . . ///////
With original maturity of one year or less. . . . . . . . . . . . . 555,000
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) . . . . . . . . . . . . . . . . . .90,951
Total liabilities. . . . . . . . . . . . . . . . . . . . . . . . . . . 5,572,614
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 . . . . . . . . . . . . . . . . . 403,264
Net unrealized holding gains (losses) on available-for-sale securities . 5,863
Total equity capital . . . . . . . . . . . . . . . . . . . . . . . . . . 471,745
Total liabilities, limited-life preferred stock, and equity capital. . 6,044,359
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
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 24th day
of May, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Norma P. Closs By: /s/ James P. Lawler
------------------------------ ------------------------------
Assistant Secretary Name: James P. Lawler
Title: Vice President
<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 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
<PAGE>
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.
(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
2
<PAGE>
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 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
3
<PAGE>
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.
(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
4
<PAGE>
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 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
5
<PAGE>
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 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.
(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be
6
<PAGE>
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 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
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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.
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.
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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) (1) 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
(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
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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 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
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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.
(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
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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 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
<PAGE>
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.
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ARTICLE III
Committees
Section 1. 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 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.
Section 2. Trust Committee
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(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 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
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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.
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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 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
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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.
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 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
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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.
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
8
<PAGE>
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 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
9
<PAGE>
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: May 24, 1999 By: /s/ James P. Lawler
-----------------------------
Name: James P. Lawler
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 December 31, 1998.
------------
ASSETS
Thousands of dollars
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins . . . . . . . . 194,839
Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . . . . 0
Held-to-maturity securities. . . . . . . . . . . . . . . . . . . . . . 73,911
Available-for-sale securities. . . . . . . . . . . . . . . . . . . . . 1,228,194
Federal funds sold and securities purchased under agreements to resell. .203,500
Loans and lease financing receivables:
Loans and leases, net of unearned income. . . . . . . 4,167,235
LESS: Allowance for loan and lease losses. . . . . . . 66,897
LESS: Allocated transfer risk reserve. . . . . . . . . . . 0
Loans and leases, net of unearned income, allowance, and reserve. 4,100,338
Assets held in trading accounts. . . . . . . . . . . . . . . . . . . . . . . . 0
Premises and fixed assets (including capitalized leases) . . . . . . . . 139,079
Other real estate owned. . . . . . . . . . . . . . . . . . . . . . . . . . 1,532
Investments in unconsolidated subsidiaries and associated companies. . . . 1,052
Customers' liability to this bank on acceptances outstanding . . . . . . . . . 0
Intangible assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,047
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .98,867
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,044,359
CONTINUED ON NEXT PAGE
<PAGE>
LIABILITIES
Deposits:
In domestic offices. . . . . . . . . . . . . . . . . . . . . . . . . .4,474,659
Noninterest-bearing . . . . . . . . 1,037,549
Interest-bearing. . . . . . . . . 3,437,110
Federal funds purchased and Securities sold under agreements
to repurchase. . . . . . . . . . . . . . . . . . . . . . . . . . . . 390,060
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . . 18,944
Trading liabilities (from Schedule RC-D) . . . . . . . . . . . . . . . . . . .0
Other borrowed money:. . . . . . . . . . . . . . . . . . . . . . . . . .///////
With original maturity of one year or less. . . . . . . . . . . . .555,000
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) . . . . . . . . . . . . . . . . . 90,951
Total liabilities. . . . . . . . . . . . . . . . . . . . . . . . . . .5,572,614
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 . . . . . . . . . . . . . . . . .403,264
Net unrealized holding gains (losses) on available-for-sale securities . 5,863
Total equity capital . . . . . . . . . . . . . . . . . . . . . . . . . .471,745
Total liabilities, limited-life preferred stock, and equity capital. .6,044,359
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
PLC CAPITAL TRUST IV
(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 IV
(Title of the indenture securities)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(b) 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
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 24th day
of May, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Norma P. Closs By: /s/ James P. Lawler
----------------------------- -----------------------------
Assistant Secretary Name: James P. Lawler
Title: Vice President
H:\...\trinact\t1\plccapt4.wpd
<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 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
<PAGE>
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.
(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
2
<PAGE>
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 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,
3
<PAGE>
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.
(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 stock and whether such dividends
shall
4
<PAGE>
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 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.
5
<PAGE>
(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.
(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
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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 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.
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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.
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) (1) 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
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$1,000,000 or more, or
(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 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
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(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.
(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
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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 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.
<PAGE>
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 1. 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 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
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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.
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
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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 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
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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 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.
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
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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 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
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"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.
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.
7
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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 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.
8
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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.
<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: May 24, 1999 By: /s/ James P. Lawler
------------------------------
Name: James P. Lawler
Title: Vice President
1
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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
- ---------------------------------------------------------- -----------------
Name of Bank City
in the State of DELAWARE , at the close of business on December 31, 1998.
------------
ASSETS
THOUSANDS OF DOLLARS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins. . . . . . . . .194,839
Interest-bearing balances. . . . . . . . . . . . . . . . . . . . . . . . 0
Held-to-maturity securities . . . . . . . . . . . . . . . . . . . . . . 73,911
Available-for-sale securities . . . . . . . . . . . . . . . . . . . . .1,228,194
Federal funds sold and securities purchased under agreements to resell. .203,500
Loans and lease financing receivables:
Loans and leases, net of unearned income . . . . . . .4,167,235
LESS: Allowance for loan and lease losses . . . . . . . 66,897
LESS: Allocated transfer risk reserve . . . . . . . . . . . 0
Loans and leases, net of unearned income, allowance, and reserve .4,100,338
Assets held in trading accounts . . . . . . . . . . . . . . . . . . . . . . . .0
Premises and fixed assets (including capitalized leases). . . . . . . . .139,079
Other real estate owned . . . . . . . . . . . . . . . . . . . . . . . . . 1,532
Investments in unconsolidated subsidiaries and associated companies . . . .1,052
Customers' liability to this bank on acceptances outstanding. . . . . . . . . .0
Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,047
Other assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98,867
Total assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6,044,359
CONTINUED ON NEXT PAGE
<PAGE>
LIABILITIES
Deposits:
In domestic offices. . . . . . . . . . . . . . . . . . . . . . . . . .4,474,659
Noninterest-bearing . . . . . . . . . . . . . . . .1,037,549
Interest-bearing. . . . . . . . . . . . . . . . . .3,437,110
Federal funds purchased and Securities sold under agreements
to repurchase . . . . . . . . . . . . . . . . . . . . . . . . . . . .390,060
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . . 18,944
Trading liabilities (from Schedule RC-D) . . . . . . . . . . . . . . . . . . .0
Other borrowed money:. . . . . . . . . . . . . . . . . . . . . . . . . .///////
With original maturity of one year or less. . . . . . . . . . . . .555,000
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) . . . . . . . . . . . . . . . . 90,951
Total liabilities. . . . . . . . . . . . . . . . . . . . . . . . . . .5,572,614
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 . . . . . . . . . . . . . . . . .403,264
Net unrealized holding gains (losses) on available-for-sale securities . 5,863
Total equity capital . . . . . . . . . . . . . . . . . . . . . . . . . .471,745
Total liabilities, limited-life preferred stock, and equity capital. .6,044,359
